Reserved and Excepted Clause

[lee71]

On my deeds dating from 1839, the family cemetary was Reserved and Excepted from transfer. In 1969, when a 100 acre parcel was sold to form a
lake association on opposite side of road, the clause was omitted from deed. Is there any validity to the clause, even tho it was omitted. I have been
informed by Parks Department that if I can regain cemetary, it would help in
obtaining Historic Status. There is a soldier who participated in the Boston
Tea Party, and a Civil War Veteran buried there with all the various family members , who date back to 1810.

 

[army judge]

On my deeds dating from 1839, the family cemetary was Reserved and Excepted from transfer. In 1969, when a 100 acre parcel was sold to form a
lake association on opposite side of road, the clause was omitted from deed. Is there any validity to the clause, even tho it was omitted. I have been
informed by Parks Department that if I can regain cemetary, it would help in
obtaining Historic Status. There is a soldier who participated in the Boston
Tea Party, and a Civil War Veteran buried there with all the various family members , who date back to 1810.

You betcha there is validity to that clause.
It protects that property, most importantly the cemetery.
You should speak with your local government or state government officials.

In fact, in NY cemeteries are protected by NY Cemetery Board.
It is under the Department of State.
Here is their website.

http://www.dos.state.ny.us/cmty/cemlaw.html

Here is a list of most recognized (or reported) NY cememteries.

http://www.dos.state.ny.us/cmty/cemeterylist.htm


These sites may help you make your case.
They list the records of most burials in NY state.

http://www.interment.net/us/ny/index.htm

http://www.deathindexes.com/newyork/index.html

You might find this section, particularly relevant.

§ 450. Lands used for cemetery purposes not to be sold or mortgaged

1. No land actually used and occupied for cemetery purposes shall be sold under execution or for any tax or assessment, nor shall such tax or assessment be levied, collected or imposed, nor shall it be lawful to mortgage such land, or to apply it in payment of debts, so long as it shall continue to be used for such cemetery purposes, except cemetery lands in which interments have not been made may be sold under execution to satisfy a valid judgment of a court of record. Whenever any such land shall cease to be used for cemetery purposes, any judgment, tax or assessment which, but for the provisions of this section would have been levied, collected or imposed, shall thereupon forthwith, together with interest thereon, become and be a lien and charge upon such land, and collectible out of the same. The provisions of this section shall not apply to any lands held by the city of Rochester or to lands lying within the village of Lewiston, Niagara county.

2. The provisions of subdivision one of this section shall not apply to real property taxes and assessments levied or imposed on the land described in subdivision one of this section on or after the first day of January, nineteen hundred eighty-two, but the provisions of section four hundred forty-six of the real property tax law shall be applicable to such land on or after such date.
§ 451. Acquisition of lands for cemetery purposes in certain counties

It shall not be lawful for any person to take by deed, devise or otherwise or set apart or use any land or ground in any of the counties of Westchester, Kings, Queens, Richmond, Bronx, New York, Rockland, Suffolk, Putnam or Nassau, for cemetery purposes without the consent of the board of supervisors for such county, or of the city council of the city of New York, as the case may be, first had and obtained in like manner as provided for in the membership corporations law; and said board of supervisors or city council in granting such consent may annex thereto such conditions, regulations and restrictions as such board may deem the public health or the public good require.

 

[lee71]

Thanks for your information. Have been down that road unsuccessfully. NY Cemeteries Board do not cover private family cemeteries; only incorporated or municipal ones. Local officials and County Reps. have not been of any help. Any other suggestions? County Clerk suggested an amended deed, which is very costly ( am on Soc.Sec.) and is not predicted to be successful. Lee71