Baker against M'Dowell, 3 Watts & Serg. 358

The opinion of the Court was delivered by Gibson, C.

J. — The deed which gives rise to the question is a conveyance of the land, together with “ the rights, liberties, privileges, immunities, hereditaments, and appurtenances;” and the “ reversions, rents, issues, and profits, thereof; and all the estate, right, title and interest” of the grantors: whence the Judge who tried the cause seems to have thought that it was necessary for them, in order to save themselves from being implicated in a breach of their warranty, to restrain the general terms of the grant by repeating, in the habendum, the reservation which Henderson had made in his deed to Blair, their ancestor. , Now, in the first place, there is nothing in this deed of Blair’s heirs, which would purport, without such a repetition, to pass the ore further than they had power to pass it.

Henderson’s reservation of a moiety of it, operated by excepting it from the rest of the thing granted; and his part of it, being parcel of the soil, was not one of the things particularly enumerated as subjects of the grant. By their conveyance of the land, the heirs of Blair did not profess to pass more than their estate in it; and the usual flourish about those incorporeal rights which are incidental to the ownership, did not purport to pass the ore which was a different corpus from anything mentioned in it.

Again: had the grantors pretended to pass the land discharged of Henderson’s reservation, they would not have broken their warranty, which, being a special one, extended no further than to encumbrances created or suffered by themselves. But Henderson’s reservation, operating as it did by way of exception, was not an encumbrance of any sort; and if it were, it was not created by the grantors. Lying within the knowledge of the grantee when he purchased, it would not even be a defence, on the ground of failure of consideration, to an action for the purchase money.

The reservation of Blair’s heirs, therefore, was unnecessary to secure anything but their own moiety of the ore — certainly not to apprise their grantee of the existence of Henderson’s reservation; of which, lying as it did in the channel of the title he was purchasing, he was bound to take notice. It is possible they may have been so far mistaken in their judgment of the law, as to think otherwise; but, in that case, why declare the reservation to be, not for Henderson, but for themselves.

If the purpose was to show conclusively that his part of the ore was not pretended to be conveyed, the obvious way to effect it was to convey the land expressly subject to his interest in it. A clause to that effect would have evinced an intent not to be mistaken; but that this reservation was introduced to except what did not belong to the grantors, is altogether improbable.

Why reserve what they had not power to pass 1 Were we at liberty to weigh probabilities, we would have more reason to think they actually intended to reserve the moiety of the ore for their own use, than that they intended to guard themselves from future difficulty in regard to the prior reservation. But though a deed is to be interpreted, so as to accord, as nearly as may be, with the apparent design of the parties, we are,not to be governed by conjecture in regard to the actual state of it.

We are furnished with guides to greater certainty of result, and with at least an equal chance to reach the actual meaning. The law-presumes that every man intends the legal consequences of his words; and hence it is that no allowance is made in the construction of deeds for unskilfulness in the use of language, Even- the Voids of a will, in respect to which the rigour of the principle is somewhat abated, are understood in their legal sense, 'where, an intent to use them in a different one is not apparent from 'the context.

We are bound to assume, then, that these grantors knew the legal effect of their words, as well as the rules by which they were to be construed; one of which tis, every part óf a deed-must be allowed to operate where it may, and every word to take~effect. Now by referring this reservation to Henderson’s moiety, we would deprive it of its power, for his reservation had left nothing remaining but the other moiety to be the subject of future exception; but by referring it to that other moiety, we put all the parts of the instrument in harmonious action.

Its legal effect, therefore, is to except from the grant that which was susceptible of exception—the part of the ore which was the property of the grantors. Judgment reversed.