the purchaser took with full knowledge of the property and of the title. And Orton, J., says: "The remark in the opinion of Chief Justice Dixon, in Mecklem v. Blake, 22 Wis. 495, intimating that a rescission might be made in such a case, was clearly obiter, and without due consideration.'

33

WHEN GRANTEE BUYS IN OUTSTANDING TITLE, his recovery on the covenant of scisin is limited by the injury actually sustained, and he recovers only the amount paid by him, with interest from the time of payment, provided this sum is less than the amount recoverable for a total breach, — that is, the consideration and interest, for the recovery cannot exceed this sum: Spring v. Chase, 22 Me. 505; S. C., 39 Am. Dec. 595; Weber v. Anderson, 73 Ill. 439; Farmers' Bank v. Glenn, C8 N. C. 35; Price v. Deal, 90 Id. 290, 295; Lawless v. Collier, 19 Mo. 480. And damages arising from the existence of a prior mortgage are determined by the amount due on the mortgage: Gilbert v. Bulkley, 5 Conn. 262; S. C., 13 Am. Dec. 57.

So, also, where the title of the grantor fails as to a part of the land conveyed, and the grantee buys in the outstanding title, the measure of damages being the sum paid for that title, provided it does not exceed the purchase-money of that part, in order to determine whether it did exceed that amount, it becomes necessary for a jury to ascertain the relative value of that parcel, and in doing so the rule for their guidance is not the proportion in quantity, but such proportion as the value of the land covered by the title paramount bears to the value of the whole land estimated by the consideration. And if the amount paid to extinguish the outstanding title shall be found to be more than the assessed value of that part, then the amount so assessed shall be the measure of damages: Price v. Deal, 90 N. C. 290, 295. Furthermore, it is held that though where the grantee has purchased in the adverse title the measure of damages is the amount paid, yet, where the grantee assigns the covenants in the deed of his grantor as a part of the consideration paid for the adverse paramount title, the assignee is entitled to the full amount of the purchase-money in an action on the covenant of seisin: Lawless v. Collier, 19 Mo. 480.

The measure of damages in general is the actual loss: Willson v. Willson, 25 N. H. 229; S. C., 57 Am. Dec. 320. And if the vendee takes any benefit from the deed, directly or indirectly, either through its own force or by the acts of others, the value of that benefit is to be considered in estimating the damages: Hartford etc. Co. v. Miller, 41 Conn. 112; and see Morrison v. Underwood, 20 N. H. 369.

THE PRINCIPAL CASE IS CITED to the point that a vendee in possession of land under a contract of sale may have his action against his vendor to recover back the purchase-money paid when he becomes entitled to his deed under his contract, by making a tender of the balance of the purchase-money, and surrendering the possession to his vendor; but he is not bound to surrender such possession, and may rely on the contract of his vendor to make his title good and hold the possession until he is evicted by the real owner; and if he does so, his cause of action will not accrue until he is evicted: Oakes v. Estate of Buckley, 49 Wis. 600. But after the contract has become fully executed by delivery of a deed, with full covenants, to the purchaser, together with the possession of the land, it cannot be rescinded; and especially where the vendor has not been guilty of any fraud or concealment, and the warrantor was solvent, and the purchaser took with full knowledge of the property and of the title thereto: Smith v. Hughes, 50 Id. 625, in which case Orton, J., says, in delivering the opinion of the court: "The remark in the opinion of Chief Justice Dixon in Mecklem v. Blake, 22 Id. 495, intimating

that a rescission might be made in such a case, was clearly obiter, and without due consideration." An action to recover anything more than nominal damages will not lie until after eviction by paramount title or other actual injury: Id. Chief Justice Dixon, in a dissenting opinion to Eaton v. Lyman, 30 Id. 46, and again in S. C., 33 Id. 40, adheres to his opinion that nominal damages cannot be recovered in an action for a breach of covenant of seisin or encumbrances, since these covenants run with the land; and he cites the principal case. The principal case is approved and followed upon the point that a right of action already accrued may be barred, provided a reasonable time be given after the passage of the act for a party to prosecute: Baker v. Supervisors, 39 Id. 448; Hyde v. Supervisors, 43 Id. 136; Arimond v. Green Bay etc. Canal Co., 31 Id. 339. And it is overruled upon the point that a judgment will not be reversed when the plaintiff is entitled to merely nominal damages, though the court directed the jury to find for the defendant, on the ground that a judgment for nominal damages carries costs, since such an action could not be brought in the justice's court: Eaton v. Lyman, 30 Id. 46; Jones v. King, 33 Id. 425.

RICH V. ZEILSDORFF.

[22 WISCONSIN, 544.]

EXCEPTION IN CONVEYANCE IS PART OF THING GRANTED AND OF THING IN BEING; while a reservation is of a thing not in being, is not a part of the estate itself, but is created out of it. TIMBER REMAINS PROPERTY OF GRANTOR, WITH RIGHT IN SO MUCH OF SOIL as is necessary to sustain it, when the timber itself is excepted in the conveyance.

RESERVATION IN DEED OF RIGHT TO CUT AND REMOVE SO MUCH TIMBER

as the grantor may remove within a specified period does not except out of the estate granted the ownership of the timber, but reserves to the grantor a mere right of cutting and removing, which terminates at the expiration of the period of limitation; and this is the legal effect of a clause in a deed "reserving the right to cut and remove all the pine timber or trees upon said premises, etc., and the right is hereby reserved by [the grantor] to enter upon said lands at any time within two years next succeeding the date of this instrument for the purpose of cutting and removing the trees and timber so reserved."

REPLEVIN for logs. The plaintiff conveyed land to the defendant, and in the deed inserted a clause recited in the opinion, reserving to himself the right to cut and remove timber, etc. During the two years' period of limitation expressed in the reservation, he cut and removed a part of the timber, and left upon the land 125 logs cut, and a large amount of timber standing. He testified that, before the expiration of the two years, the defendant agreed to extend the time for a year or more; and that afterwards, and within the three years. when he commenced cutting timber on the land, the defend

AM. DEC. VOL. XCIX-6

ant forbade him to cut or remove any more.

The defendant

denied that he ever gave an extension of time. The action was brought to recover the logs already cut, but not removed from the land. The court instructed that the clause in the deed was to be treated as an exception, and that the absolute title to the timber remained in the plaintiff; that if the logs in question were a part of this timber, and the defendant, on demand, refused to deliver them, the plaintiff was entitled to recover; that a parol license to enter and take off the timber after the expiration of the two years would be good, and would protect the plaintiff against the charge of trespass; and that the defendant might have given notice to the plaintiff after the two years expired to remove the timber, and plaintiff would have had a reasonable time to remove the same without being liable for damage. The verdict was for the plaintiff, and a new trial being denied, the defendant appealed from a judgment on the verdict.

Hudd and Wigman, for the appellant.

Myron Reed, for the respondent.

By Court, COLE, J. This case must turn entirely upon the construction which is placed upon a clause in the deed of warranty, dated March 13, 1863, given by the plaintiff as grantor to the defendant as grantee. The deed was for the consideration of $225, and conveyed "all that certain piece or parcel of land situated, lying, and being, . . . . reserving the right to cut and remove all the pine timber or trees upon said premises, and one half of all cedar trees upon said premises; and the right is hereby reserved by the party of the first part to enter upon said lands at any time within two years next succeeding the date of this instrument, for the purpose of cutting and removing the trees or timber so reserved."

The question now is, Did the grantor by this language reserve only the right to cut and remove so much of the timber upon the land conveyed as he might cut and remove within two years from the date of the deed? Or did he reserve to himself the absolute ownership of the timber, and merely fix or limit the time it would be lawful for him to enter upon the premises for the purpose of taking off the timber so reserved? The defendant contended that the former construction was the proper one to be placed upon the clause of the deed just cited, and accordingly asked the circuit court to in

struct the jury that the conveyance conveyed an estate in fee to the defendant, with the right of plaintiff to cut and remove all the pine timber thereon, and one half of the cedar, within two years from the date of the deed; and that if not cut and removed within that time, the reservation or exception lapsed, and the estate became absolute in the defendant. The court refused to give this instruction, but charged the jury, among other things, that the clause in the deed in terms reserving the pine and half of the cedar timber on the land conveyed is to be treated as an exception, and the absolute title of the timber remained in the plaintiff. Was this construction of the deed by the court correct?

Judge Selden, in Craig v. Wells, 11 N. Y. 315-321, in speaking of the distinction between an exception and a reservation in a conveyance, says: "Although these terms are frequently used as substantially synonymous, yet they are in reality different. Perhaps the difference cannot be better stated than in the words of Shepard. He says: 'A reservation is a clause in a deed, whereby the grantor doth reserve some new thing to himself out of that which he granted before. This doth differ from an exception, which is ever a part of the thing. granted, and of a thing in esse at the time; but this is of a thing newly created or reserved out of a thing demised that was not in esse before': Shep. Touch. 80. It will be seen, therefore, that a reservation is always of something taken back out of that which is clearly granted, while an exception is some part of the estate not granted at all. A reservation is never of any part of the estate itself, but of something issuing out of it, as, for instance, rent, or some right to be exercised in relation to the estate, as to cut timber upon it. An exception, on the other hand, must be a portion of the thing granted, or described as granted, and can be of nothing else; and must also be of something which can be enjoyed separately from the thing granted: Shep. Touch. 77, 78; Cunningham v. Knight, 1 Barb. 399; Starr v. Child, 5 Denio, 599."

Substantially the same language is used by Chief Justice Tenney, in State v. Wilson, 42 Me. 9-21, where he says: "Exception is always a part of a thing granted, and of a thing in being; and a reservation is of a thing not in being, but is merely created out of lands and tenements devised; though exception and reservation have often been used promiscuously."

In giving a construction to this clause of the deed, we must

ascertain, if possible, the intention of the parties to the instrument. And we think that the intention manifestly was to reserve only the right to cut and remove so much of the timber upon the land conveyed as the grantor might remove within two years from the date of the deed. It will be noticed that the reservation is of the right to cut and remove the timber upon the land,—that is, a new right derived from the estate granted, and hence it falls fully within the definition of a reservation above given. For when the land was conveyed, and this right to cut and remove the timber was reserved, that right, in the sense of the law, became a new thing, separate from the right of the grantee in the premises. In some of the cases, the timber itself is reserved, and the courts hold that this is strictly on exception, since it is a part of the realty, or a part of the estate, and would have passed to the grantee but for the exception. The property in the timber continues in the grantor, with the right in so much of the soil as is necessary to sustain it. That was the language of the grant in Howard v. Lincoln, 13 Me. 122; Goodwin v. Hubbard, 47 Id. 595; and Knotts v. Hydrick, 12 Rich. 314, where it was held that the timber remained the property of the grantor. In Sanborn v. Hoyt, 24 Me. 118, where a tract of land was conveyed, "excepting and reserving all the buildings on said premises," the court held that the whole land described in the deed, including that under the buildings, passed to the grantees, but that the buildings became the personal property of the grantors. But those cases are readily distinguishable from the one we have before us. Here it is not the timber which is excepted from the operation of the deed, but the right to cut and remove only so much as he may take off within the time specified in the deed. It comes fully within the principle of the cases of Pease v. Gibson, 6 Me. 81, and Reed v. Merrifield, 10 Met. 155.

But it is said if it was the intention of the parties merely to reserve to the grantor the right to go upon the land and take off the timber standing thereon for two years, then the last clause of the reservation is wholly unnecessary. But this is a mistake. The proper office of that clause was to fix the time within which the grantor must exercise the right reserved. In the first clause of the reservation no time was specified. But the parties provided by the subsequent language that the right to cut and remove the timber might be exercised for the period of two years, after the expiration of which time the right lapsed.