« PreviousContinue »
But I find no authority for this proposition. The adjudications appear, on the contrary, to show very plainly that when a covenant beneficial to land is made, it is not essential to its devolution with the title that the covenantee should have title to the land to wbich it relates, or that the estate should have come from the covenantor, or should have passed from him, eo instanti, with the inception of the covenant. When, therefore, the covenantee in this case became vested with the title, the covenant, as it touched and concerned the land, became an incident to such land, and as such, passed with it, upon conveyance, by act and operation of law.
On the one or other of these grounds, the declaration, in my opinion, must be upheld.
CONDUITT v. ROSS.
[Reported 102 Ind. 166.] From the Marion Superior Court.
T. A. Hendricks, C. Baker, 0. B. Hord, A. W. Hendricks, A. Baker, E. Daniels, and W. S. Shirley, for appellant.
J. M. Judah and 0. B. Jameson, for appellee. MITCHELL, J. On the 26th day of April, 1875, Julia A. Ross and John Hauck were the owners of adjoining lots in the city of Indianapolis. Pursuant to a written agreement entered into by Mrs. Ross and her husband on the one part, and Mr. Hanck on the other, she placed one half the width of the south wall of a four-story brick and stone building which she erected on her lot, on the north margin of the Hauck lot. After erecting the building, she conveyed the lot, with the improvements thereon, to George P. Bissell, reserving, by a stipulation contained in her deed, the right to receive compensation from adjoining property owners for the building, or use of existing party walls. Subsequently the appellant became the owner of the Hauck lot, and in 1882 commenced the erection of a building thereon, and attached the same to and used the wall erected by Mrs. Ross Refusing to make payment, this suit was commenced to recover one half the original cost of the wall. Upon issues made a trial was had, which resulted in a finding and judgment for the plaintiff.
Counsel for appellant rest their argument for a reversal of this judg. ment mainly upon the proposition that the agreement between Hauck and Mrs. Ross was purely personal to them, and that Conduitt, by using the wall erected in pursuance thereof, came under no obligation whatever in consequence of such use. They insist further, that if liable at all, the extent of his liability was the actual value of the wall when used, and not its original cost.
The rights and obligations of the parties must be determined by a construction of the agreement already referred to, which is of the the following tenor:
“ This agreement between John Hauck of the first part, and Julia A. Ross and Norman M. Ross, her husband, of the second part, witnesseth: That in consideration that the parties of the second part shall erect a substantial brick wall, twelve inches in thickness and four stories high, on the line dividing the property of John Hauck and Julia A. Ross, in square 87, in the city of Indianapolis, Marion county, Indiana, which line is 12 feet south of the south line of lot No. 4, in Morris Morris' subdivision of square 87, in the city of Indianapolis, and which wall is to stand six inches in width upon the ground of said Hauck, and six inches upon the ground of said Ross, and is to run back the depth of said Ross's present building, and may at any time be extended further back on the same line the full depth of said lots by either party, the full consent of said Hauck to the erection of said walls being hereby granted: Now, therefore, said John Hauck hereby binds himself, his heirs, executors, administrators and assigns, that whenever, after the erection of said wall or walls by the party of the second part, said Hauck, his heirs, executors, administrators or assigns, shall, in any building he or they may erect on the present ground of said Hauck, use said wall or any part thereof, or attach any part of his or their building thereto, then the said Julia A. Ross shall be paid, without relief from valuation or appraisement laws, the full value of one half the original cost of said wall or walls. And it is further agreed that neither party shall have the right to so use any part of said wall or walls as to weaken or endanger the same; and that said Hauck, his heirs, executors, administrators or assigns shall not in any wise whatever use or attach to said wall or walls so to be erected by said Ross, until the said value and cost of one half thereof shall be ascertained, and paid or tendered to said Julia A. Ross.
"In witness whereof, we have hereunto set our hands and seals, this 26th day of April, 1875. (Signed)
JOHN HAUCK. [SEAL.]
N. M. Ross. [SEAL.]”. This agreement was duly acknowledged and recorded in the miscellaneous records of Marion county, and it is averred that the appellant had actual notice of it at the time he purchased.
The liability of the appellant depends upon whether the contract set out constituted a continuing covenant, which became annexed to and ran with the Hauck lot. If it did, he is liable according to its terms; if it did not, he is liable in this form of action for nothing.
In considering whether a covenant is one which does, or does not run with the land, there is always embraced the following inquiries: 1. Is the covenant one which, under any circumstances, may run with
land? 2. Was it the intention of the parties, as expressed in the agreement, that it should so run?
Doubtless, a covenant which, from its character, might run with the land, may be so restricted in terms as to make it purely personal, and available to the parties to it, and no other. So, too, a covenant may contain apt words to make it a continuing covenant; yet if its nature or the subject-matter of it is such that it does not concern some interest or estate in land, either existing or created by it, it cannot run with land.
When an instrument conveys or grants an interest or right in land, and at the same tiine contains a covenant in which a right attached to the estate or interest granted is reserved, or when the grantee covenants that he will do some act on the estate, or interest granted, which will be beneficial to the grantor, either as respects his remaining interest in the lands out of which an interest is granted, or lands adjacent thereto, such covenant is one which may become annexed to and run with the land, and bind its owners successively. When such grant is made, and contains a covenant so espressed as to show that it was reasonably the intent that it should be continuing, it will be construed as a covenant running with the land. A covenant which may run with the land must have relation to the interest or estate granted, and the act to be done must concern the interest created or conveyed.
In Bally v. Wells, 3 Wils. 25, it was said : “ When the thing to be done, or omitted to be done, concerns the lands or estate, that is the medium which creates the privity between the plaintiff and defendant."
By the contract under consideration, Mrs. Ross acquired the right to enter upon the Hauck lot and erect and permanently maintain thereon a party wall. This was a grant to her of an interest in land, and was of such a character that a perpetual covenant might be annexed to it. Snowden v. Wilas, 19 Ind. 10; Hazlett v. Sinclair, 76 Ind. 488 (40 Am. R. 254); 1 Smith Leading Cases, 8th ed., 161, 162.
In consideration of this grant to her she covenanted to do an act beneficial to the remaining interest of Hauck ; that act was the erection of a wall so situated as that one half of it should rest on the margin of his lot, and the other half on hers, thus devoting each estate to the mutual support of the party wall. She at the same time covenanted that when she should be reimbursed one half the cost of the wall, he, or his grantees, should acquire a reciprocal interest in her lot, and in legal effect become owner of one half the party wall.
This agreement created what has been aptly termed mutual or cross easements in favor of each in the lot of the other, and was an arrangement mutually beneficial to both properties. Fitch v. Johnson, 104 Ill. 111; Roche v. Ullman, 104 Ill. 11; Bronson v. Coffin, 108 Mass. 175 (11 Am. R. 335); Thomson v. Curtis, 28 Iowa, 229.
It contained, therefore, all the elements necessary to a covenant capable of running with the land. Hazlett v. Sinclair, supra; Richardson v. Tobey, 121 Mass. 457 (23 Am. R. 283); Standish v. Lawrence, 111 Mass. 111; Maine v. Cumston, 98 Mass. 317; Savage v. Mason, 3 Cush. 500; Brown v. McKee, 57 N. Y. 684; Keteltas v. Penfold, 4 E. D. Smith, 122; Platt v. Eggleston, 20 Ohio St. 414; Masury v. Southworth, 9 Ohio St. 340; Bertram v. Curtis, 31 Iowa, 46; Norfleet v. Cromwell, 70 N. C. 634, 641 (16 Am. R. 787).
It is apparent, too, that it was the intention of the parties that the covenant to pay should run with the land. The words used in that connection are those usually and aptly employed for the purpose : “ John Hauck hereby binds himself, his heirs, executors, administrators and assigns, that whenever, after the erection of said wall or walls by the party of the second part, said Hauck, his heirs, executors, administrators, or assigns, shall, in any building he or they may erect,” &c., they will pay, &c. A continuing covenant may exist without the word “ assigns,” or “grantees,” but when these or equivalent words are used, they become persuasive of the intent of the parties. Van Rensselaer v. Hays, 19 N. Y. 68. It was the manifest purpose of the parties that the right to receive payment for the wall should be personal to Mrs. Ross. It was stipulated that payment should be made to Julia A. Ross.
It results that the complaint was sufficient, and that the second paragraph of answer, in which it was alleged that the wall, by reason of injurics sustained from fire, was worth much less than the original cost, was insufficient, and the respective rulings of the court were not erroneous.
The covenant being one which ran with the land, when the appellant availed himself of its benefits he became related to it as the original covenantor, and it became the measure of his obligation. We think it is fairly deducible from the complaint that the appellant derived his title through Hauck.
Judgment affirmed, with costs."
HOLMES v. BUCKLEY.
[Reported Prec. in Ch. 39.] ANTHONY BOTTELY and Katharine, his wife, being seised in right of the said Katharine, of two pieces of ground by indenture, 25 Jan. 1622, did grant a watercourse to one John Howland, and his heirs,
1 A petition for a rehearing was overruled. The opinion of the court refusing this petition is omitted.
See Richardson v. Tobey, 121 Mass. 457 ; Roche v. Ullman, 104 Ill. 11.
through the said two pieces of ground; and br that deed did covenant for them, their heirs and assigns, from time to time, to cleanse the same; and that all fines and recoveries levied and suffered, and to be levied and suffered of the said grounds, should be and inure for the strengthening and confirming the said watercourse, according to the said grant, and afterwards, the 30th of the same month, join in a deed, declaring the uses of the recovery to be suffered of the said ground; and that the same should inure to the strengthening and confirming the watercourse granted by the said indenture of the 25th of January.
The watercourse, by mesne assignments, came to the plaintiff, and the said two pieces of ground to the defendant, who built upon the same, and much heightened the ground that lay over the watercourse, and made it much more inconvenient and chargeable to repair, and as it was alleged (and in part proved) the building had much obstructed the said watercourse; so the bill was, to be established in the enjoyment of the said watercourse; and that the defendants, and all claiming under them, might from time to time cleanse the same, according to the said covenants.
It was objected for the defendants, that the said. covenant being a personal covenant, and made by a feme covert, could in no sort bind the defendants ; and that, though the recovery had made good the grant of the watercourse, yet that this personal covenant was not at all strengthened or bettered by it; and that the plaintiff, and those under whom he claimed, being sensible of it, had for forty years cleansed the same at their own charges.
But the court was of opinion, that this was a covenant that ran with the land, and though made by a feme covert, was strengthened and made good by the recovery, and said, though the plaintiff had cleansed the same at his own charge, whilst it was easy to be done, and of little charge ; yet since the right was plain upon the deed, and the cleansing made chargeable by the building, it was reasonable the defendants should do it, and decreed accordingly and gave the plaintiff his costs.
TULK v. MOXHAY.
[Reported 2 Phil. 774.] In the year 1808 the plaintiff, being then the owner in fee of the vacant piece of ground in Leicester Square, as well as of several of the houses forming the Square, sold the piece of ground by the description of * Leicester Square Garden or Pleasure Ground, with the equestrian statue then standing in the centre thereof, and the iron railing and stone work round the same,” to one Elms in fee: and the deed of con