« ForrigeFortsett »
St. c. 124, § 13. As this right is a valuable in fee, and that during that time the demandinterest in property within the common- ant had been under no disability; but it apwealth, which is assignable in equity, we peared that the said Mary Gloyd, the mother are of opinion that it can be reached by cred- of the demandant, died in 1879, and the deitors under Pub. St. C. 151, § 2, cl. 11, as mandant asked the court to rule that the statamended by St. 1884, c. 285. Suits similar ute of limitations did not run against the deto this, under statutes resembling ours, have mandant until the death of her mother. But been maintained elsewhere, and the means the court refused so to rule, and ruled that, whereby the land has been applied to the pay- as there was no evidence that the dower had ment of the plaintiffs' debt seem to be within ever been set off to the mother, the statute the ordinary powers of a court of equity. of limitations ran against the demandant bePayne v. Becker, ubi supra; Tompkins v. fore the death of the mother; and, having so Fonda, ubi supra; Davison v. Whittlesey, ruled, a verdict was taken for the tenant. ubi supra; Boltz v. Stolz, 41 Ohio St. 540.
The demandant excepted to the refusal to In Mason v. Mason, 140 Mass. 63, 3 n. rule as requested, and to the ruling given. E. Rep. 19, the conveyance was of an inchoate Louis A. Cook and Wm. J. Coughlan, for right of dower by å married woman in the plaintiff. Simmons & Pratt, for defendant. life-time of her husband. Maxon v. Gray, 14 R. I. 641, was decided on the ground that FIELD, J. - The demandant is the sole heir there were no statutes of Rhode Island which of David Gloyd, who died in 1836, seised of gave the court jurisdiction, and that the case the land demanded, leaving one child, the was not within the general equity jurisdic- demandant, and a widow, the mother of the tion of the court. The decree dismissing the demandant. The widow was entitled to dowbill must be reversed, and the demurrer over- er in the land, but her dower was never asruled. So ordered.
signed to her, and she conveyed the land in
1849 by warranty deed to one Ford, from (150 Mass. 297)
whom, by mesne conveyances, it has come to SMITH V. SHAW.
the tenant. The widow died in 1879. The
tenant and those under whom she claims (Supreme Judicial Court of Massachusetts. Plymouth. Nov. 30, 1889.)
have been in adverse possession of the land LIMITATION OF ACTIONS-DOWRESS AND HEIR.
since 1849. The demandant asked the court, Where a widow, whose dower has not been to rule "that the statute of limitations did assigned to her, conveys the decedent's land by not run against the demandant until the warranty deed, the statute of limitations begins death of the inother." The court refused to to run against the heir before the widow's death. give this ruling, and ruled “that, as there
Exceptions from superior court, Plymouth was no evidence that the dower had ever been county; HAMMOND, Judge.
set off to the mother, the statute of limitaThis was a writ of entry, brought to re- tions ran against the demandant before the cover a certain lot of land situate in Abing- death of the mother.” A widow, before her ton. At the trial before a jury there was ev- dower has been assigned to her, has no esidence tending to show that the land in ques- tate in the lands of her deceased husband. tion was a part of six acres of land conveyed Windham y. Portland, 4 Mass. 384, 388; to David Gloyd, the father of the demandant, Sheafe v. O'Neil, 9 Mass. 13; Gooch v. Atkins, in 1829, by Lemuel Humphrey, treasurer of 14 Mass. 378; Hildreth v. Thompson, 16 the town of Weymouth, and of which six Mass. 190; Croade v. Ingraham, 13 Pick. 33; acres the said David Gloyd died seised and McMahon v. Gray, ante, 923, (1889.) There possessed in 1836. Said Gloyd left a widow, was, therefore, after the death of David Mary Gloyd, and as his only heir, Mary H. Gloyd, and before the demandant, as his heir, Gloyd, (now Smith,) the demandant, who was entitled to possession, never any interwas then nine years of age. Said widow was veuing estate within the meaning of Pub. entitled to dower in said six acres of land, St. c. 196, § 3, cls. 2, 3. Exceptions overbut it was admitted by the demandant that it ruled. was never set off to her. She had no other interest therein. She was appointed admin
(46 Ohio St. 575) istratrix on the estate of her said husband in NATIONAL Exch. BANK 0. CUNNINGHAM, 1836, and continued to occupy and improve (Supreme Court of Ohio. Nov. 19, 1889.) the premises for which this action is brought EASEMENTS-STAIRWAYS-CONVEYANCES. until 1849, when she conveyed them by war
1. When the owner of an entire estate makes ranty deed to Louis Ford. Since 1849 said one part of it visibly dependent for the means of premises have been occupied by said Ford or access upon another, and creates a way for its benhis assigns, claiming under said deed to him, efit over the other, and then grants the dependent
part, the other part becomes subservient thereto, and the tenant, Ida C. Shaw, claims by mesne and the way constitutes an easement appurtenant conveyance from said Ford. Said Mary to the estate granted, and passes to the grantee as Cloyd died in 1879. It was conceded by the accessorial to the beneficial use and enjoyment of demandant that the tenant, and those under
the granted premises.
2. The owner of a lot situated at the corner of whom she claimed, had, ever since the said intersecting streets in a city erected thereon a deed to Ford in 1849, had adverse, continued, three-story building, covering the whole of the lot. and uninterrupted possession of the demand- the second story of the building, was constructed
A stairway, leading from the principal street to cd premises under a claim of right as owner in the corner room of the first story. At the land
ing of the stairway, and connected with it, a hall floor of the building so made by the bank was made, extending across the second floor of the now is, and ever since the erection of the room next to the corner room, and connecting with the second story of the next adjoining room. The building has been, used and occupied under rooms on the second story were intended for of the lease of the bank, and its grantees, for fices; and, to adapt them to such use, doors were offices; and during the same periods the stairmade opening into them from the hall. Another stairway was also put in, running from the hall to way leading from Washington street to the the third story. The stairway leading from the second floor has been used by those occupy. street to the second story was and is the only ing the offices, also by all the comers and means of access to the hall above, and to the rooms goers into the building; and was during all opening into it, and the use of the stairway was and is necessary to their proper use and enjoy- of said time, and still is, the only way to ment. While the premises were in this condition reach the offices upon the second floor, and the owner sold and conveyed a part thereof, de- also the stairway leading to the third floor. scribed by metes and bounds, which included the That the stairways and the halls, also the hall connected with the landing of the stairway leading from the street, and the office rooms on right to use each thereof, are privileges and the second floor opening into the hall
, which had appartenances belonging to the said building, no means of access except through the hall, and by and to each and every part thereof. That on the stairway. The purchaser, with the knowledge of his vendor, who retained the corner room, in the 11th day of January, A. D. 1867, and which was the stairway, immediately entered while the building was unfinished and inupon, and continued the use of the stairway as his complete, the bank, in consideration of the only means of access to the hall and connecting sum of thirteen thousand and five hundred rooms purchased by him. Held, that by the conveyance a right to the use of the stairway passed dollars to it paid by the defendant William to the purchaser as an easement appurtenant to H. Grapes, bargained and sold, and agreed the premises conveyed.
to convey, to the said Grapes, in fee-simple, (Syllabus by the Court.)
the following part of the said lands and tenError to circuit court, Seneca county. ements, upon which the said building then
The original action was brought in the stood, together with all and singular the court of common pleas of Seneca county by rights and privileges and appurtenances to Edward J. Cunningham v. The National Ex- the same belonging, including the right to use change Bank of Tiffin, Ohio, and William H. and enjoy for himself, his heirs and assigns, Grapes. The petition charges that the bank, forever, the said stairways and halls; being which is a corporation organized under the all of the lot, and building upon it, except so national bank act, became the owner of a lot much as are within the boundaries of that 60 feet square at the corner of Washington portion on the corner having a frontage of and Market streets, in the city of Tiffin, and twenty-four feet on Washington street, and erected thereon a three-story brick building, running back a like width the entire depth covering the whole of the lot. The first of the lot on Market street. That, as a part story consisted of three business rooms front of the said bargain and sale, and agreement to ing on Washington street and one fronting convey, and concurrent therewith, the bank, on Market street. The corner room, occu- for the consideration last aforesaid, agreed in pied by the bank as its banking-house, bas a writing with the said Grapes to finish and front of 24 feet on Washington street, and complete the building in the manner and form extends, back, along Market street, a dis- aforedescribed, which was so done by the tance of 45 feet. The room immediately in bank on or about the first day of April, A. the rear of the bank fronts on Market street D. 1867, and since then no change or altera15 feet, and has a depth of 24 feet. The other tion in said building has been made. That two rooms, which are used for store-rooms, on the first day on April, 1867, the said each have a frontage of 18 feet on Washing- Grapes took possession of the premises so conton street, and extend back the full depth of veyed to him, and occupied the store-room the lot. The petition then alleges: “That himself for more than one year next thereaftupon the twenty-four feet front so frontinger; and during the same period the other on Washington street, and north of and ad-store-room, also the rooms upon the second joining the south side thereof, the bank, in and third foors, were occupied by different flecting the building, erected a stairway persons, under leases from the said Grapes, leading from Washington street to the second to whom they accounted for the rent; and floor of the building; and also then erected that during the time aforestated the staira stairway, upon the same line, from the sec- ways and halls were used by the said perond to the third floor of the building; and sons, and by all others who visited the rooms also then made a hall upon the second floor, above the store-rooms so conveyed to the said leading east from the stair landing to the east Grapes, and without the objection of the end of the building; also another hall upon bank, or notice or knowledge that it claimed the second floor, leading south from the stair an adverse right. That on the 14th day of landing to the room upon the second door January, A. D. 1868, the said Grapes, in conabove the south store-room; and also then sideration of the sum of sixteen thousand erected another stairway from the hall last dollars to him paid by the plaintiff, bargained mentioned, leading from the second floor to and sold, and agreed to convey, to the plainthe third floor of said building; and also then tiff, in fee-simple, the same premises, todivided the second floor into eight or more gether with the same rights, privileges, and rooms, and connected the rooms with the appurtenances, which the bank bargained, halls by means of doors. That the second 'sold, and agreed to convey to the said
Grapes, including the right to use forever the from closing up or obstructing in any mansaid stairways and halls. That on the 14th ner the said stairways or halls, or either day of January, A. D. 1868, the plaintiff en- thereof; from preventing, or attempting to tered into the possession of the premises so prevent, the plaintiff, or those claiming unagreed to be conveyed to him, and ever since der him, also all other persons, from the full, has had, and still has, through himself and free, and perfect use and enjoyment of the his tenants, such possession, together with said stairways and halls, to go to and from the open and notorious, and, until recently, the said second and third floors of the plainthe uninterrupted, use and enjoyment of the tiff's said premises. said stairways and halls, and with the knowl The answer of the bank, in substance, adedge and acquiescence of the bank, and with- mits that it owned the lot and erected the out demand by it for compensation therefor, building as alleged in the petition, but avers or notice from it of an adverse right. That that the hall leading southward from the on the 11th day of April, A. D. 1867, the landing of said stairway in said bank buildbank, intending to fully execute its agree- ing was only made for temporary purposes; ment to convey to the said Grapes, in fee- and that the right to use said stairway, or simple, the said premises, and also the said the entrance into said south hall therefrom, right to use and enjoy forever the stairways are not now, and have never been, intended and halls, did execute and deliver to the said to be any privilege or appiirtenance belongGrapes its deed conveying to him, in fee- ing to said south building, nor any part simple, so much of the south part of the north thereof, which Grapes and plaintiff, during third of said in-lots sixty-six and sixty-five their respective occupancies, well knew and as is bounded by the lines aforestated, to- acknowledged. The answer denies that on gether with the privileges and appurtenances the 11th day of January, 1867, or at any oththereunto belonging, but unintentionally, er time, the defendant sold or agreed to sell and through mistake, omitted to grant in the or convey to Grapes, or any other person, said deed, in express terms, to the said Grapes, the said stairway, or the use thereof, as a and his heirs and assigns, forever, the right privilege or appurtenance belonging to the to use and enjoy the said stairways and balls. said south rooms, or ever included the right That on the 14th day of January, A. D. 1868, to use and enjoy for himself, or his heirs or the said Grapes, intending to fully execute assigns, forever, the said stairways and halls his agreement to convey to the plaintiff, in to the said Grapes, in any conveyance or confee-simple, the said premises, and also the tract whatever. It denies that said stairway right to use and enjoy forever the said stair. was ever used by the lessees of either Grapes ways and halis, did execute and deliver to or Cunningham without objection or notice the plaintiff his deed conveying to the plain- or knowledge on the part of Grapes or plaintiff, in fee-simple, the same premises described tiff of the adverse right and claim of the dein the deed of the bank to the said Grapes, fendant. It denies that Grapes sold or agreed together with the appurtenances thereunto to sell or convey to plaintiff any right or belonging, but unintentionally, and through claim in or upon said stairway as an appurmistake, omitted to grant in the said deed, tenance or otherwise to said south building. in express terms, to the plaintiff, and his heirs It further denies that the plaintiff or his lesand assigns, forever, the right to use and sees had uninterrupted use and enjoyment of enjoy the said stairways and halls. That the said stairway without demand from the debank claims an estate and interest in the prem- fendant of any compensation for such use ises so bargained and sold, and agreed to be and occupancy, or any notice to plaintiff of conveyed, by it to the said Grapes, and by the the adverse right and claim by the defendant, said Grapes to the plaintiff, adverse to the and avers that the plaintiff promised and plaintiff, and his estate and interest therein. agreed to pay the defendant for the use of That the bank claims that the plaintiff has said stairway for his tenants in said building, no right to the use of the stairway leading in the second and third foors thereof, the from Washington street to the second and sum of — dollars per year, and, under third floors of the building, or to the east hall such agreement, paid to the defendant, for on the second 'tloor, and threatens, and is such use and occupation of said stairway, at about, to shut up and close the north end of two or three different times, and made said the hall upon the second floor, which leads payments for several years at a time, and about south from the stair landing upon the sec- the day of January, 1880, made an ond floor, and thereby prevent the plaintiff agreement with the defendant to pay to him, and his tenants from using the said stairways for the use of said stairway for said building, and halls; also the second and third floors of the sum of $15 per year for each and every that part of the premises so agreed to be con- year that he should use the same. veyed to the said Grapes and the plaintiff, and The defendant Grapes made default. The will so do, to the irreparable injury of the plaintiff, by reply, denied all the allegations plaintiff and his said premises, unless re- of new matter in the answer. The case was strained by the order and judgment of this tried at the September term, 1883, and, a decourt. The plaintiff prays that the bank, cree having been rendered for the plaintiff, and each of its officers, servants, and agents the bank appealed to the circuit court, where, may be enjoined from any and all interfer- at the October term, 1885, the cause was ence with the said rights of the plaintiff,'tried, and at the request of the defendant
that court separately stated its findings of finto them from the hall or passage-way formed fact and conclusions of law, which are as fol- by making said rooms and the said stairways lows:
above mentioned, and a way leading from the “The parties appeared with their attorneys, one into the other. That between the top or and this cause was heard on the petition of landing of the first stairs and the foot of the the plaintiff, the answer thereto of the Na- second stairs, above mentioned, an opening tional Exchange Bank of Tiffin, Ohio, the re-was left or made in the brick or south wall, ply of the plaintiff, and the testimony. In above mentioned, of the banking room, and consideration whereof, and upon the request which separates it from the remainder of the of the National Exchange Bank that the court brick building, from which said opening a hall should state the conclusions of fact separately was made, extending south to the south wall from the conclusions of law, the court find or side of the building, and which hall divides as conclusions of fact, from the testimony, the second floor and story of the two storethat the National Exchange Bank of Titlin, rooms of said building south of the said bankOhio, duly became a corporate body, as ing room into back and front rooms or offices, averred in said petition, and that it was lo- and from which hall doors open into said front cated and doing its banking business in Tiffin, rooms or offices. That the third story of the Seneca county, Ohio. That in the year 1866 two store-rooms south of the banking room the said bank purchased the lands first in the is all in one room. That in constructing the petition described, and immediately thereaft- building the stairs above mentioned and the er proceeded to, and did, erect thereon the hall last above mentioned were the only way said building in the petition described, and provided to get to the rooms on second floor did complete the same in manner and form or in the second story of the said two storetherein described. That, to obtain the proper rooms, except that a stairway and stairs were location for a banking room, the said bank was pat up in both of the store-rooms, leading from compelled to buy the whole of the said lot of the first floor to the second floor of the back land on which the building was so erected, rooms of each of them, and thence a stairway and that the two rooms on the south of the and stairs were put up which conducted up banking room of the defendant were so to the third story or room over the two storeerected to be immediately sold. That the rooms; but that in constructing the brick building was built of brick, three stories high, building no other way was provided to get to and divided into three separate business the front rooms or offices on the second floor rooms, extending east and west and fronting or story of the said store-rooms than the said west on Washington street of said city of stairway and hall above mentioned. That Tittin, the north room thereof being built on the 11th day of January, 1867, when said twenty-four feet wide, with a stone front, on building was finished and ready for occuWashington street, and the middle and south pancy, the said bank sold and conveyed in feerooms thereof each eighteen feet wide. That simple to the defendant William H. Grapes, said business rooms were separated by solid for the sum of $13,500, the said middle and brick walls, extending from the cellar to the south rooms of said building and premises roof of said building, except that an opening above mentioned, and which are described in was left in said wall, separating said north the deed of conveyance therefor as follows: from said middle room, in the second story So much of the south part of the north third of said building, for a hall, extending south of in-lots numbered sixty-six (66) and sixtythrough the said middle room, and to the said five (65) in the First ward of the city of south room, as hereinafter more particularly Tiffin, in Seneca county, Ohio, as is bounded set forth. That the first story of the north by the following lines: Beginning therefor room of said building was intended for a' at the north-west corner of the middle third banking room, and of the middle and south of the said in-lot No. 66, which point is also rooms for business or store rooms; and that the north-west corner of the building of said rooms always have been and yet are so Charles M. Yerk on said middle third of said used. That, in constructing the building on lot No. 66; thence northerly, on and along the premises described in said petition, and the west line of said in-lot No. 66, to the the banking room on the north side thereof, south side of the stone column at the southa stairway was made, and stairs put up on the west corner of the new bank building on said north side of and against the south brick wall north thirai of said lot No. 66; thence eastof the banking room, above mentioned, and ward and northerly around said stone column wholly within the banking room, and lead to the center of the brick wall on the north ing from Washington street to the second side of the room adjoining said new building floor or story of said banking room, and also or room, on the south side thereof; thence a further stairway was made, and stairs easterly on and along the center line of said put against the same side of the same di- brick wall to the west line of that portion of viding brick wall of said banking room, com- in-lot No. 65 aforesaid now owned by Philip mencing some feet east from the top or land- Emich; thence southerly, on and along said ing of the stairs first above mentioned, and west line of said Philip Emich's, to the north leading up to the third floor or story of the line of said Charles M. Yerk, on the north banking room. That rooms or offices are side of said middle third of said lot No. 66; made on the second floor, or in the second thence, on and along said north line, weststory of the banking room, and doors opened' wardly to the place of beginning, be the
same more or less.' And said description in up the said opening in said wall at the top said deed was and is immediately followed by landing of said stairway, forming the entrance the words, and all the estate, title, and inter- to the said south hall in the second story of est of the said National Exchange Bank, said building, and from closing up or obstructeither in law or in equity, of, in, and to said ing the said south hall, or the way leading premises, together with all the privileges and thereto, in any manner whatever, or doing, appurtenances to the same belonging. That or permitting to be done, any act whatever afterwards, on the 14th day of January, 1868, to prevent the free and undisturbed use of the said Grapes sold and conveyed, in fee- the said stairway leading from Washington simple, to the said plaintiff, the same part of street for that part of said building and premthe said building and premises last above de- ises so by it conveyed to said Grapes, and by scribed, with the same description and like said Grapes to said plaintiff.” covenants. That on May 3, 1869, and again To which findings and conclusions of law, on January 31, 1870, the plaintiff paid to the and judgment, the bank excepted, and to obbank the sum of $12.50, which said bank de- tain the reversal of the judgment prosecutes manded of him on account of an alleged error to this court. higher rate of insurance the sail bank had to N. L. Brewer, for plaintiff in error. pay because of the opening for said south hall in said brick wall, separating the banking WILLIAMS, J., (after stating the facts as room from the rooms conveyed to said Grapes above.) The only question raised upon the and to the plaintiff. That the free and un-record is whether the facts found by the disturbed use of the said stairway leading circuit court are sufficient to warrant the from Washington street to second floor of judgment it rendered. The case made by said building, and the opening at the top those facts is, in substance, that in the landing of said stairway in the wall separat- plan and construction of the building erected ing the said parts of said building, owned re- by the bank, which covered the entire lot spectively by the plaintiff and the bank, are owned by it, a stairway, leading from Washnecessary for the proper use and enjoyment ington street to the second story of the buildof that part of said building so conveyed by ing, was constructed in the corner room, now said bank to said Grapes, and by said Grapes occupied and owned by the bank. At the to the plaintiff, as constitute the front offices landing of this stairway, and connected with of said portion so sold and conveyed; and it, a ball was made, extending across the secthat such use and enjoyment of said stairway ond floor of part of the premises afterwards and said opening in said wall is the only conveyed by the bank to Grapes, and by him means of access to the said offices on said to the plaintiff, and connecting with the secsecond floor of the plaintiff's part of said ond story of the balance of the premises so building, and was used, with the knowledge conveyed. The rooms on the second story of of said defendant, from the 11th day of Jan- the premises now owned by the plaintiff uary, 1867, until about the time of the com- were made into offices, and doors opened into mencement of this action. That on or about them from the hall.
That on or about them from the hall. Another stairway was the 1st day of December, 1880, the bank was also put in, running from the hall to the third about to close the opening in said wall at the story. The stairway leading from Washingentrance of said south hall, in the second ton street to the second story was and is the story of said building, so as to prevent the only means provided for access to the hall use of said stairway to reach the second and above, and to the rooms opening into it, and third Hoors of that part of said building so the unobstructed use of that stairway is necconveyed by said bank to Grapes, and by essary to their proper use and enjoyment. Grapes to the plaintiff. And the court, from This was the condition of the premises when the foregoing conclusions of fact, find as con- the bank sold and conveyed to Grapes those clusions of law that the said stairway leading portions purchased by him, including the from said Washington street to the second hall, and the rooms which open into it; and floor of said building, and the opening in said thereafter, with the knowledge of the bank, wall at the top landing of said stairway, he used the stairway as his only means of acforming the entrance of said south hall in the cess to the hall and the rooms, until he sold second story of said building, are privileges to the plaintiff. The stairway was so in use and appurtenances belonging to that part of when the plaintiff purchased, and he theresaid building and premises so conveyed by after continued such use until shortly before said bank to said Grapes, and by said Grapes the commencement of the action, when the to the plaintiff; and that the plaintiff, his bank threatened to close up the entrance to heirs and assigns, have and hold the right to the hall, and thus prevent the use of the stairthe free and undisputed use and enjoyment of way as a means of approach to it, and to the the said stairway leading from Washington connecting rooms. The general rule that street to the second floor of said building, easements appurtenant pass with the grant 'and of the entrance to the said south hall of the dominant estate is not controverted; thereof. It is therefore ordered, adjudged, but the principal claim of the plaintiff in erand decreed that the defendant, the National ror is that, inasmuch as the conveyance was Exchange Bank of Titlin, Ohio, and all per- made to Grapes immediately after the comsons claiming by, through, or under it, be and pletion of the building, and at that time no hereby are perpetually enjoined from closing use had been made of the stairway as a means