James Pollock agt. Henry Cronise, 12 How. Pr. 363

Welles, Justice. The effect of the conveyance by the plaintiff to Harris, was to vest in the latter the right to the rents in question. The provision in that conveyance, respecting the defendant’s right to flow the land, is not valid either as an exception or reservation. The utmost effect that can be given to it is to limit the description of the property intended to be conveyed; or to show that Harris took the title subject to the easement of the defendant, acquired by the instrument of January 3d, 1839, and thus to qualify the covenants in the deed.

It would be torturing language to interpret the clause in question as a reservation of the rent. It is the right to flow water upon the land conveyed which is attempted to be excepted or reserved, and not the rent. If the rent had been reserved, a very different question would have been presented. It is not good as an exception, because the plaintiff had no right to grant it, having previously parted with it by the agreement with the defendant, of the last-mentioned date.

In the Touchstone it is said that, “ In every good exception these things must concur.” Seven particulars are then specified, the fifth of which is as follows: “ It must be of such a thing as he that doth except may have, and doth properly belong to him.” (1 Shepp. Touch., Chap. 5, pp. 77, 78; see also Cruise on Real Property, Tit. XXXII, Ch.

XX., § 66, Vol. 4, p. 289.) Neither is it good as a reservation, for the reasons that the thing reserved is not something growing or issuing out of the thing granted in the same deed; but had been previously granted by the agreement with the defendant referred to j and also, that the right reserved'is to a stranger. The Touchstone says, “ In every good reservation these things must always concur: 1. It must be by apt words. 2. It must be of some other thing, issuing or coming out of the thing granted, and not a part of the thing itself, nor of something issuing out of another thing. 3.

It must be of such a thing, whereunto the grantor may have resort to distrain. 4. It must be made to one of the grantors, and not to a stranger to the deed.” (1 Shepp. Touch., ch. 5, p. 80.) In Hornbeck agt. Westbrook, (9 Johns. R. 73,) it was held, that a reservation in a deed, to a person not a party to the deed, was void. (See, also, Cunningham agt. Knight, 1 Barb. S. C. R. 407.) It follows, that the plaintiff, having granted the right to the rents in question, is not entitled to recover them, and that there should be judgment for the defendant.