Sater, 13 Minn. 223; Gifford v. Carvill, 29 Cal. 589; Cruess ▼. Fessler, 39 Id. 336.

The defendant, while claiming to the plaintiff that she had no title, showed his insincerity by obtaining from her a warranty deed with covenants against all encumbrances except taxes and tax liens. This deed was prepared by his attorney, evidently with his consent and concurrence. The judgment of the district court having been for the plaintiff, it is clearly right, and is affirmed.

AVOIDANCE OF CONVEYANCE OF LAND by the grantor for misrepresentations of material facts made by the grantee: Harris v. Tyson, 24 Pa. St. 347; 64 Am. Dec. 661, note 667; Barnard v. Duncan, 38 Mo. 170; 90 Am. Dec. 416, note 425; Juzan v. Toulmin, 9 Ala. 662; 44 Am. Dec. 448, note 463; Lester v. Mahan, 25 Ala. 445; 60 Am. Dec. 530, and note 533.

EISELEY V. SPOONER AND LYMAN.

[23 NEBRASKA, 470.J

LANDLORD AND TENANT. - CONVEYANCE OF LEASED PREMISES CARRIES WITH IT THE RIGHT TO ALL RENTS subsequently falling due.

-

DEED. AN EXCEPTION IS A WITHDRAWAL from the operation of the grant of some part of the thing granted, and if valid, the title to the thing excepted remains in the grantor, as if no grant had been made. Deeds. — Reservation in a DeeD is of some new thing issuing out of what

is granted, and while not affecting the title to what is granted, may reserve to the grantor a right to the use or enjoyment of a part thereof. CONVEYANCES OF LAND, under the Compiled Statutes of Nebraska of 1887, chapter 73, sections 50 to 53, pass all interest of the grantor therein, unless a contrary intent can be reasonably inferred from the terms used; and in construing them it is the duty of the court to carry into effect the true intent, as far as auch intent is consistent with law.

Brome, White, and Mapes, for the plaintiff in error.

W. H. Munger and E. F. Gray, for the defendants in error.

REESE, C. J. On the twenty-ninth day of April, 1885, C. F. Eiseley leased to George Weigle certain real estate for a term beginning on the first day of March, 1885, and ending on the first day of March, 1886. The rent reserved was two fifths of all wheat, barley, rye, oats, and corn raised on the premises during the season of 1885, to be delivered on or before January 1, 1886. On the thirtieth day of April, 1885, Eiseley, the landlord, sold, and by warranty deed conveyed, the real estate to defendants for the consideration of nine thousand dollars. The land is conveyed "subject to a lease which expires March

1, 1886." This language immediately follows the description of the property. At the time of the execution of this deed the tenant was in possession of the real estate. During the year 1886, the share of the crop due to the landlord was delivered to defendants, and this suit is brought by the vendor, Eiseley, for the value of the rent collected by them. The cause was tried by the district court, which resulted in a judgment in favor of defendants. Plaintiff brings error to this court.

The only question involved in the case is the construction to be placed upon the language of the deed referring to the lease. Was the rent reserved by the terms of the lease, and which was to accrue after the conveyance, reserved to the grantor, by the language used in the deed? or was the grantee entitled thereto?

It is contended by plaintiff in error that the language used constitutes an exception out of the grant; that, fairly construed, it means that the grantor reserves the use of the premises conveyed until the 1st of March, 1886; while upon the part of defendants in error it is insisted that the words are not an exception, because nothing is excepted or taken out of the thing conveyed, nor yet a reservation, because nothing new is created and reserved to the grantor out of the thing so conveyed; that it is merely a recital of a prior estate, then vested in a third party, and, to this extent, a qualification of the covenant of warranty contained in the deed.

An exception is said to be a withdrawal from the operation of the grant of some part of the thing granted, while a reservation is of some new thing issuing out of what is granted. Thus where real estate is granted, a portion thereof may be excepted from the terms of the conveyance, or the trees or woods growing thereon. If the exception be valid, the title to the thing excepted remains in the grantor the same as if no grant had been made. A reservation, while not affecting the title to the thing granted, may reserve to the grantor a right to the use or enjoyment of a portion thereof, as an easement, the right to pass over, or the like. Applying these rules to the deed in question, we are led to conclude that the purpose of the language used was a limitation upon the title conveyed, and upon the covenants of warranty. It conveyed the land, subject to whatever rights the tenant might have under his lease, but reserved to plaintiff no additional or

AM. ST. REP., VOL. VIII.-9

greater right than he would have had had the words referred to been omitted.

By the provisions of our statutes, every conveyance of real estate shall pass all interest of the grantor therein, unless a contrary intent can be reasonably inferred from the terms used: Com. Stats. 1887, c. 73, sec. 50. And in the construction of conveyances of real estate, or interest therein, it shall be the duty of the courts to carry into effect the true interest (intent) so far as such intent is consistent with the rules of law: Id., sec. 53.

We think it cannot be questioned that, as a general rule, the conveyance of a reversion carries with it the rent accruing and becoming due after such conveyance. Upon this we think the authorities are in harmony, although a different rule would apply where the rent was due and remaining unpaid: See Moffett v. Armstrong, 40 Iowa, 484; Abercrombie v. Redpath, 1 Id. 111; Van Driel v. Rosierz, 26 Id. 575; Townsend v. Isenberger, 45 Id. 670; Wilkins v. Vashbinder, 7 Watts, 378; Cobel v. Cobel, 8 Pa. St. 342; 2 Bouvier's Law Dict., tit. Rent.

The lease to Weigle, being nothing more than a grant of the temporary possession of the land in consideration of the rent reserved, gave him the right of such possession during the term of the lease or grant; but while it is true that defendants could not have questioned his right to such possession had the deed contained no limitation, yet plaintiff would have been bound, upon the covenants of his warranty, to account to defendants for the value thereof had not the clause been inserted in the deed. Following, therefore, the direction of section 53 of the statutes above referred to, in so construing the deed as to carry into effect the true intent of the parties, we must hold such to have been the purpose of the limitation.

We have carefully considered all the authorities referred to by plaintiff, as well as others bearing upon the application of the principle insisted upon by him, yet we are unable to adopt the conclusion reached by his counsel, although the case cannot be said to be entirely free from doubt.

The judgment of the district court is affirmed.

RENT RESERVED IN LEASE passes with the land by a conveyance of the latter: Mussey v. Holt, 24 N. H. 248; 55 Am. Dec. 234, and note 241; Miller v. Stagner, 3 B. Mon. 58; 38 Am. Dec. 178.

EXCEPTION IN DEED, WHAT IS: Rich v. Zeilsdorff, 22 Wis. 544; 99 Am. Dec. 81; see also Wait v. Baldwin, 60 Mich. 622; 1 Am. St. Rep. 551.

RESERVATION IN DEED, WHAT IS: Rich v. Zeilsdorff, 22 Wis. 544; 99 Am. Dec. 81; Dyer v. Sanford, 9 Met. 395; 43 Am. Dec. 399.

IN CONSTRUCTION OF DEEDS, FIRST RULE Is, that the intention of the parties will be effectuated if possible; and the second is, that this intention is to be ascertained from all their terms, considered together: Lowdermilk v. Bostick, 98 N. C. 299; Bradley v. Zehmer, 82 Va. 685; yet whatever the intention may be, nothing will pass by a deed except what is described therein: Thayer v. Finton, 108 N. Y. 394.

MATHEWS V. TOOGOOD.

[23 NEBRASKA, 536.]

COUPONS, DECISIONS RELATING TO THE ALLOWANCE OF INTEREST UPON, cited by the court.

INTEREST UPON INTEREST, decisions respecting the allowance of, cited by the court.

INTEREST UPON A COUPON, OR INTEREST NOTE, is forbidden by the statute of Nebraska, in all cases where the allowance of such interest, though expressly agreed to be paid, would result in the payee's receiving a. greater sum than ten per cent per annum on the amount of his loan.

Dawes, Foss, and Stephens, for the plaintiff in error.

Abbott and Abbott, for the defendants in error.

REESE, C. J. The original action in this case was instituted in the district court of Saline County, for the purpose of foreclosing a mortgage given to secure a promissory note for four thousand four hundred dollars, dated May 2, 1885, and due May 2, 1887, with interest from date at the rate of ten per cent per annum, payable semi-annually, as per coupons attached to the note. There is one interest coupon remaining attached to the note, which is as follows:

"$220.

May 2, 1887.

"We promise to pay to Luther P. Mathews, or order, two hundred and twenty dollars, being interest to that date on my note of four thousand four hundred dollars. This interest. note to draw ten per cent per annum from maturity."

Upon trial before the district court, a decree was rendered in favor of plaintiff in error for the full amount claimed, excepting the interest demanded upon the coupon note after its maturity. This the court refused to allow to the plaintiff, and this action of the district court is now assigned for error.

There was no appearance at the hearing in this court by defendants in error, and in the examination of the question

before us we have been without the benefit of a brief

side of the case.

upon that

In the examination of the question involved, we find a sharp conflict of authorities, and it is impossible to harmonize them. We here give a brief statement of the holdings of the courts upon some of the questions bearing upon this case.

The following cases hold, substantially, that coupons, whether detached from the bonds or not, draw interest after their maturity: City of Aurora v. West, 7 Wall. 82; Langston v. South Carolina R. R. Co., 2 S. C. 248; City of San Antonio v. Lane, 32 Tex. 405; Town of Genoa v. Woodruff, 92 U. S. 502; Hollingsworth v. Detroit, 3 McLean, 472, 473; National Exchange Bank v. Hartford etc. R. R. Co., 8 R. I. 375; 91 Am. Dec. 237; Commonwealth of Virginia v. Chesapeake and Ohio Canal Co., 32 Md. 501.

The following cases may be cited as holding a contrary doctrine: Force v. City of Elizabeth, 28 N. J. Eq. 403; Columbia County v. King, 13 Fla. 451; Rose v. City of Bridgeport, 17 Conn. 243.

In the following cases it is held that interest cannot be compounded, where the note provides that interest shall be payable annually, but that interest must be computed as simple interest: Leonard v. Villars, 23 Ill. 377; Bannister v. Roberts, 35 Me. 75; Niles v. Board of Commissioners, 8 Blackf. 158; Hastings v. Wiswall, 8 Mass. 455; Doe v. Warren, 7 Me. 48; Stokely v. Thompson, 34 Pa. St. 210; Pindall v. Bank of Marietta, 10 Leigh, 481.

While the following cases may be cited as holding the reverse, to wit, that interest will be allowed upon unpaid interest, where by the terms of the note interest is payable annually: House v. Tennessee Female College, 7 Heisk. 128; Pierce v. Rowe, 1 N. H. 179; Preston v. Walker, 26 Iowa, 205; 96 Am. Dec. 140; Wheaton v. Pike, 9 R. I. 132; 98 Am. Dec. 377; Wright v. Eaves, 10 Rich. Eq. 582; Lewis v. Pashcal's Adm'r, 37 Tex. 315; Aspinwall v. Blake, 25 Iowa, 319; Singleton v. Lewis, 2 Hill (S. C.), 408; O'Neall v. Sims, 1 Strob. 115; Doig v. Barkley, 3 Rich. 125; 45 Am. Dec. 762; Bledsoe v. Nixon, 69 N. C. 89; 12 Am. Rep. 642; Talliaferro v. King, 9 Dana, 331; 35 Am. Dec. 140.

In the following cases it is held that interest may be allowed on interest, if the promise to pay it is made after the interest matures, but not if the promise was made before the maturity of the interest: Stewart v. Petree, 55 N. Y. 621; 14 Am. Rep.