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air to the spaces left for windows, or place obstacles in the way of the exercise of a right of way to the apertures intended for doors; and when two separate purchasers buy two unfinished houses from the same vendor, and at the time of the purchase the spaces for windows and doors are marked out, this is a sufficient indication to the purchasers of the rights they are respectively to enjoy, so that they cannot subsequently interfere with each other's enjoyment of the windows and doors as marked out, and impliedly agreed upon, at the time of the sale." 1 Add. Torts, (6th Ed.) 314; Janes v. Jenkins, 34 Md. 1; Compton v. Richards, 1 Price, 27; and see Thompson v. Miner, 30 Iowa, 386; Washb. Easem. 91. So long as the bank continued to own the entire premises, there could, of course, be no easement in favor of one part, or servitude upon another, for it might make any use it chose of every part; but when it conveyed the part now owned by the plaintiff the purchaser took it with all the incidents and benefits which at the time appeared to belong to it, as between it and that part retained by the bank. The stairway being at that time the means provided by the vendor for access to a part of the premises sold, and the only means of such access then existing, and being then and now, as found by the circuit court, necessary to the proper use and occupation of the premises sold, the right to its use passed by the conveyance to the purchaser, and the bank cannot be allowed now to derogate from its grant by depriving the plaintiff of that use.

of access to the hall and rooms above, the right to such use was not an appurtenance to the premises conveyed, and did not, therefore, pass by the grant. It is evident, however, that at the time of the conveyance the arrangement and construction of the building was such as to plainly indicate that the stairway must have been intended as a permanent and continuous way of reaching the hall, and the rooms connecting with it, on the second floor. Those rooms were constructed for use, and no avenue of approach to them was provided, except by that stairway. The bank, in the construction of the building, had thus visibly and obviously made them dependent for the means of access and beneficial enjoyment upon the use of the stairway; and it must have been apparent to both parties that, in the condition in which the premises were at the time of the conveyance, without the use of the stairway, the hall and rooms to which it led were inaccessible and useless, and it could hardly have been contemplated by either that immediately thereafter the grantee should contrive and adopt some different means by which he might be enabled to enjoy what he had purchased. The parties are presumed to have contracted with reference to the condition of the property at the time of the sale, and to have intended that the grantee should have the means of using the property granted, and, therefore, that he should have such rights and privileges in or over the premises remaining in the grantor as might be requisite for that purpose. It is a well-settled doctrine of the law of easements that where there are no re- It seems to be supposed by the counsel for strictive words in the grant the conveyance plaintiff in error that the judgment of the cirof the land will pass to the grantee all those cuit court requires the bank to keep the stairapparent and continuous easements which way in repair, and rebuild it in case of its have been used, and are at the time of the destruction by fire or other casualty. If such grant used, by the owner of the entirety for were the scope of the judgment, the plaintiff the benefit of the parcel granted, and, also, in error would have just ground of complaint; all that appear to belong to it, as between it for it is undoubtedly the rule that, unless the and the property which the vendor retains; owner of the servient estate is bound by covand hence, when the owner of an entire es-enant or prescription to repair, he is under tate makes one part of it visibly dependent no obligation to do so. The burden devolves for the means of access upon another, and upon the owner of the dominant estate of creates a way for its benefit over the other, making whatever repairs are necessary for and then grants the dependent part, the oth- his use of the easement. It is said by a er part becomes subservient thereto, and the learned author that, "as a general proposiway constitutes an easement appurtenant to tion, whoever has an easement, like a right the estate granted, and passes to the grantee, of way in or over another's premises, is the as accessorial to the beneficial use and enjoy-one to keep it in repair," (Washb. Easem. ment of the land. "It cannot be denied," 730;) and, by another, that "every grantee of said POLLOCK, C. B., in Glave v. Harding, a right of way to be exercised and enjoyed "that if a man builds a house, and there is actually a way used, or obviously and manifestly intended to be used, by the occupiers of the house, the mere lease of the house would carry with it the right to use the way, as forming part of its construction." 27 Law J. Exch. 292. And "where the shell of an unfinished house was sold, with openings in the walls for the insertion of windows and doors, it was held that the vendor could not, after the sale and conveyance of the unfinished structure, build on his own adjoining land so as to obstruct the access of light and v.22N.E.no.23-59

over or through the land of the grantor must himself repair the way, if he desires to have it repaired, and kept in repair for his use, or if repairs are necessary to prevent the enjoyment of the right becoming an annoyance and nuisance to the owner of the servient tenement, unless the grantor himself has expressly undertaken the performance of that duty," (1 Add. Torts, 301, 302.) But it is clear the judgment has no such effect as that supposed. It does no more than enjoin the defendant, and those succeeding to its title, from doing any act curtailing the plaintiff's

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enjoyment of the easement. The payment | thereto the following as the grounds of said made by the plaintiff to the bank on account motion, viz.: Irregularity in obtaining said of the insurance is quite unimportant. It judgment, and mistake, omission, or neglect appears to have been nothing more than a of the clerk;' and, it being made to appear voluntary contribution, without agreement to the court that there was irregularity in the or obligation, towards the payment of the in- obtaining of said judgment, it is ordered that creased rate of insurance exacted in conse- said motion be amended accordingly; and quence of the opening made in the wall in thereupon said motion as amended coming on the construction of the hall referred to, and to be heard, the court having fully considered is not incompatible with the existence of the the same, it is ordered by the court that, on easement. How it would have affected the payment of all the costs in this court, judgrights of the parties if the payment had been ment be and is hereby set aside, and ten days made as a compensation for the use of the are hereby given in which to file answer, to stairway, we need not determine. Upon the which plaintiff excepts." The plaintiff befacts found by the circuit court, its judg- low filed her petition in error in the circuit ment, we think, is correct, and must be af- court, to reverse the order of the court of firmed. Judgment accordingly. common pleas vacating the judgment entered at the previous January term. The circuit court affirmed the order of the court of common pleas, and it is now sought to reverse the judgment of affirmance, and the order of the court of common pleas.

(46 Ohio St. 639)

BRADEN v. HOFFMAN.
(Supreme Court of Ohio. Dec. 10, 1889.)
DEFAULT JUDGMENT-VACATION- WRIT OF
ERROR.

1. An order of the court of common pleas, made on motion of the defendant, and vacating a default judgment, entered at a previous term, for irregularity in obtaining the same, is an order affecting a substantial right made upon a summary application after judgment, and may be reversed, vacated, or modified for errors appearing on the

record.

The order of the court of common pleas sustaining the motion, and setting aside the judgment rendered at the preceding term, is to be deemed a final order, and therefore a proper subject of review on error. It was such "an order affecting a substantial right, made upon a summary application in an action after judgment," as may, by a proceeding in error, be reversed, vacated, or modified for error appearing on the record. Rev. St. §§ 6707-6710; Hettrick v. Wilson, 12 Ohio St. 136; Taylor v. Fitch, Id. 169. said by the court in Huntington v. Finch, 3 3. B., at the January term, A. D. 1885, of the Ohio St. 447: "The power of the court to set court of common pleas, recovered a judgment by aside or vacate its judgments, subsequent to default against H. At the next term H. moved to the judgment term, is governed by settled set aside the judgment for irregularity in obtain-principles, to which the action of the court ing the same, which motion was granted, judgment vacated, and 10 days allowed in which to file answer. Held, this was error. Frazier v. Williams, 24 Ohio St. 625, followed and approved. (Syllabus by the Court.)

2. Although the court may have decided that there is good ground to vacate on motion such judgment rendered on default at a preceding term, it is error to vacate the same before it has been adjudged that there is a valid defense to the action; and if, on error, such adjudication is not shown by the record, it will not be presumed.

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must conform, and for a departure from which any judgment or order may be subject to be reviewed and reversed, on proceedings in error."

The main question, however, for consideration is, did the court below err in granting the motion, and in setting aside the judg

ment rendered at a former term? Under section 5354, subd. 3, Rev. St., a court of common pleas may vacate or modify its own judgment or order, after the term at which the same was made, for mistake, neglect, or omission of the clerk, or irregularity in obtaining a judgment or order. As provided by section 5357, Rev. St., the proceedings to

DICKMAN, J. The plaintiff in error, Emma Braden, on an appeal from a judgment of a justice of the peace, recovered a judgment in the court of common pleas of Hamilton county, at the January term, A. D. 1885, against the defendant in error, John S. Hoffman, for the sum of $256.75, with in-correct such mistake, omission, or irregularterest thereon; the defendant in the action be- ity shall be by motion, upon reasonable noing in default for an answer or demurrer to tice to the adverse party, or his attorney in the petition. At the May terin, A. D. 1885, the action. The journal entry shows that of the court of common pleas, to-wit, on the the court granted the motion to set aside the 11th day of June, the defendant moved the judgment on the ground that there was irreg court to set aside the judginent; and there- ularity in the obtaining of it; and, though after, at the same May term, A. D. 1885, the the record is silent in regard to notice to the following entry was made upon the journal adverse party, a waiver of notice is shown. of the court: "Now come the said parties, by the appearance of the plaintiff, and her with their respective attorneys, and there-excepting to the order of the court. But by upon this cause came on to be heard upon section 5360, Id., a judgment shall not be vaapplication of defendant for leave to amend cated on motion until it is adjudged that there his motion filed June 11, 1885, to set aside is a valid defense to the action in which the judgment, and for a new trial, by adding judgment was rendered; and, when a judg

But the record in the case at bar, far from showing such previous adjudication that there was a valid defense to the action, shows that the defendant was allowed 10 days, within which to file answer and make known his defense, after the judgment was set aside. The judgment of the circuit court, and the order of the court of common pleas vacating the judgment rendered at the previous January term, must be reversed. Judgment accordingly.

ment is modified, all liens and securities ob- | orders, judgments, and all material acts and tained under it shall be preserved to the modi- proceedings of the court. Rev. St. § 5334. fied judgment. And by section 5359, Id., the court must first try and decide upon the grounds to vacate or modify a judgment or order before trying or deciding upon the validity of the defense. In Frazier v. Williams, 24 Ohio St. 625, it was held that the object of these provisions of the statute in postponing the judgment to vacate until it shall be adjudged that there is a valid defense to the action is to preserve the liens and rights of parties under the original judgment, in case a similar judgment should be rendered upon the trial of the cause. It was construed to be the meaning of the statute that, when the court has decided that there is good ground to vacate, the judgment to vacate should be suspended until after the cause is tried; and if, on such trial, the defense is established, then judgment of vacation is to be entered, or, if the defense fails, the judgment is to be affirmed, or such other judgment entered as

the result of the trial indicates.

The record in the case at bar does not show that, before setting aside the judgment, there was an adjudication upon the validity of the defense to the action, and until it was adjudged that there was a valid defense there was, in our view, no authority in the statute to vacate the judgment. But it does appear by the record that, after deciding there was good ground to vacate, the court, instead of suspending the judgment to vacate until after an adjudication upon the validity of the defense, vacated the judgment absolutely, in the first instance, and allowed a given time thereafter in which to answer and set up defense. The design of the statute to preserve liens and priorities might thus be virtually defeated, although, upon the coming in of answer and the trial of the cause, by the court or by a jury, the defense might fail. The maxim, omnia præsumuntur rite acta,

cannot avail the defendant in error. "The

general principle of presuming a regularity of procedure *** ought not," says Sir D. Evans, "to be carried too far, and it is not desirable to rest upon a mere presumption that things were properly done, when the nature of the case will admit of positive evidence of the fact, provided it really exists." 2 Evans, Poth. Obl. 286. Whether it has been ad

(117 N. Y. 168)

CITY OF ALBANY v. MCNAMARA.

(Court of Appeals of New York. Nov. 26, 1889.) SUPPORT OF PAUPER-PROMISE TO REPAY-PRE

SUMPTIONS.

of the poor of a city without having made applica-
1. A person who receives aid from the officers
tion therefor, or representations as to his respon-
sibility or physical condition, is not liable for the
amount expended by the city in his support.
2. In an action for the support of defendant's
testatrix, no request therefor will be implied from
the presumption that the officers of the poor per-
formed their legal duty, and investigated and af-
forded aid, as the duty is discretionary, and the
request is a fact in issue.

3. In the absence of evidence that some one had authority to make application and representations for defendants' testatrix, and of the nature of the representations, no presumption arises that application was made for her merely because it is usually made.

4. The duty of the officers of the poor being defendants' testatrix in need of aid, and furnished discretionary, they will be presumed to have found it gratuitously, in the absence of evidence showing a promise to pay therefor. defendants' testatrix under a mistake of fact, no 5. Though money was paid for the support of right of action arises in the absence of a request. third department. Appeal from supreme court, general term,

W. McNamara, executor of the estate of Action by the city of Albany against John furnished the latter by plaintiff. From a Mary E. Payne, deceased, for the support judgment of the general term affirming a judgment entered on report of referee in favor of plaintiff, defendant appeals.

James F. Tracey, for appellant. D. Cady Herrick, for respondent.

RUGER, C. J. The material question in this case is whether a person receiving aid as a poor sick person from the officers of the judged that there is a valid defense to the ac-poor in a city or county, in the absence of tion, before setting aside a judgment ren- any representations as to his responsibility or dered at a former term of the court, should physical condition, incurs a liability to repay not be left to mere presumption. In Het- the amount expended on his or her behalf by trick v. Wilson, supra, the court say: "As such city or county. The claim was that the the record in this case shows no adjudication plaintiff was entitled to recover of the deof the court upon the validity of the plain-fendant's testatrix an amount of money paid tiff's cause of action, it is difficult to see how by it to the Albany Homeopathic Hospital the order vacating the judgment can be sus- for the care and maintenance of such testatained." The language of the statute is ex-trix as a poor person. The question arises plicit that, until it is adjudged that there is in proceedings under the statute, upon a a valid defense to the action in which the reference authorized by the surrogate, to dejudgment was rendered, a judgment shall not termine claims against the estate of the tesbe vacated on motion. There must be a pre- tatrix. At the close of the plaintiff's evivious adjudication that is apparent on the record, which in itself is required to embrace

1Reversing 2 N. Y. Supp. 127.

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the principal they represent, in an action which is founded solely upon the condition of a performance of duty by them. The claim that they were requested to act lies at the foundation of the alleged right of recovery, and is a substantive fact in the controversy, not the subject of a presumption. Sheldon v. Wright, 7 Barb. 39; People v. City of Brooklyn, 21 Barb. 484; U. S. v. Ross, 92 U. S. 281.

There is no claim that the testatrix made any personal application to the poor authorities for relief; but it is sought to raise a presumption that some one, who is not shown, made some sort of application in her behalf, because, as it is argued, that such application

such person, whoever it might be, had any authority from the testatrix to make such application, or any representations in her behalf, or what representations were in fact made in regard to her circumstances or condition upon that occasion. If the court were at liberty to draw inferences from the circumstances shown, they could infer only that, before extending aid, the city authorities, in the performance of their duty, had examined into the circumstances of the defendant's testatrix, and found she was entitled to such aid. There is no evidence in the case but that she was in fact a person entitled to relief under the law, and we cannot see how the alleged presumption, even if it was indulged, could aid the plaintiff's case.

dence the defendant moved for a nonsuit, the rule in question. Neither can such a which was denied by the referee, and the de- presumption be indulged in as to a vital fendant excepted. The motion was based jurisdictional fact in favor of the officers, or upon the ground that no application or request for aid or assistance on the part of defendant's testatrix to the authorities of Albany had been shown, and that without such proof the action could not be sustained. This proof was essential upon the theory of the case presented by the plaintiff, and, not having been furnished, the exception to the refusal to dismiss the claim was well taken. We might properly dismiss the discussion of the case at this point; but, as that would not wholly satisfy the object of counsel as exhibited by the argument, we have thought it proper to indicate our views as to the propriety of the action generally. The proof showed that the city of Albany had paid to the Homeopathic Hospital the sum of was usually made. It is not shown that $538.28 for care and maintenance furnished to Mary E. Payne, under an order made by its overseer of the poor, directing the hospital to extend aid to her. There was no evidence that this order was issued upon the application of the testatrix, or of any one upon her behalf. It was proved that such applications were usually made, and also that such orders were sometimes issued without any applications. It is obvious that this claim, if supportable at all, must be so upon the principles which obtain in actions to recover back moneys paid and expended by one person for another. It is an elementary principle in such actions that money voluntarily paid out by one for another cannot be recovered back. 1 Pars. Cont. 471 et seq. In order to support such an action it is essential that a request But we do not think that a request for aid on the part of the person benefited to make can be implied from the circumstances stated, such payment, either expressed or fairly to be or, if it can, that it was anything more than implied from the circumstances of the case, the usual solicitation for charity which apmust be proved. Add. Cont. 1055; Wright parently needy persons make to the poor auv. Garlinghouse, 26 N. Y. 539; Wellington thorities, and for receiving which no implied v. Kelly, 84 N. Y. 546. To bring itself promise can be raised for reimbursement. within these rules, the respondent claims The fund from which the moneys were adthat the testatrix was legally liable to the vanced was created for the purpose of affordhospital for the debt incurred for her board ing gratuitous relief to the indigent poor; and maintenance, and that, inasmuch as the and, if an applicant therefor did not come city had paid that liability upon the implied within the description of persons entitled to request of the testatrix, her estate is liable to such relief, the authorities were not authorthe plaintiff for such payment. We are of ized to grant it. The law contemplates some the opinion that, under the circumstances of examination by the authorities into the cirthis case, no such liability was incurred by cumstances of objects of charity, and, if that the testatrix to the hospital; neither is there does not show them to belong to the class enany proof that she, directly or indirectly, re-titled, under the statute, to aid, it is their quested the plaintiff to pay such liability or duty to deny relief. The circumstances which incur such expenses for her benefit. It is control the exercise of the power to grant reclaimed that such request may be inferred lief to poor persons are so various in the cases from a presumption, applying to the acts of of different persons, and are so incapable of public officers, that they have performed such being defined by strict rules, that much must legal duties as the law imposes upon them, be left to the judgment and discretion of the and that the law makes it their duty to make officers. The possession of some property by inquiries and afford aid to the poor sick. No a person does not always and necessarily presuch duty is expressly imposed by the statute, clude such person from a just claim for reand, if it exists at all, it is itself an implica- lief. The question of the propriety of relief tion from the nature of the powers conferred is confided to the discretion of the poor auupon them. It relates to a course of conduct, thorities, and if they grant the relief asked, and not to any specific act, and is not such a it is to be presumed they have made such inspecific duty as authorizes the application of vestigations as they deemed necessary, and

its during the life of her son-in-law, and the mnority of her youngest grandchild, and for the investment thereof in real estate for the benefit of her grandchildren, the testatrix directed her exee

have determined the question as to the right of the party examined to such relief. There is no provision made in the law for a review of that determination, and such aid once fur-utors to pay over to each grandchild on coming of nished must thereafter be regarded as a charity extended by the city to the object of their benevolence without expectation of reimbursement. Deer Isle v. Eaton, 12 Mass. 327; Medford v. Learned, 16 Mass. 215. The misjudgment of the officers of the poor as to the necessities of the person relieved raises no implied promise on the part of such person that he will repay moneys expended in

his behalf.

It is urged by the respondent that every person is in law primarily liable to support himself. It is quite probable that most persons who do not support themselves are likely to get little or very poor support from any one; yet it is not true, as a legal proposition, that every person is liable to support himself. Every person has a natural right to choose the mode and manner of his life, and, so long as he does not violate any positive provision of law, to follow it; and if aid and assistance are voluntarily furnished by the charitable and credulous, without deception to such person, we know of no rule that enables the persons giving to recover back from the object of their benevolence the moneys so advanced to him. Deer Isle v. Eaton, supra.

age, her youngest grandchild and her son-in-law rents and profits of the estate "during the lives of still living, his or her proportionate share of the said grandchildren and son-in-law." Held, that the word "and" between "youngest grandchild" and "son-in-law" should be construed "or," and the word "grandchildren" construed "grandchild," so as to limit the accumulations to the period of minority, each child taking his proportionate share on attaining majority, and that the rents and profits invested in land were to be included in each proportionate share.

3. The validity of the devise in trust to the executors, to invest the rents and profits in land for the benefit of the grandchildren of testatrix during ing in the executors the power to apply the same their respective minorities, is not affected by vestfor their education and support during minority, in case the income from their mother's estate is direct the investment of the rents and profits as she not sufficient for that purpose, as testatrix may sees fit.

4. A devise of productive and unproductive land to the executors, to rent or lease as they may invest them with the power to sell the unproducdeem best, and invest the income thereof, does not tive land, although it is a drain on the income of the productive land.

Appeal from supreme court, géneral term, first department.

Action by Alfred Roe and another, executors of Elizabeth F. Floyd, deceased, against George T. Vingut, individually and as administrator, and others, to construe the will of testatrix. Decree for plaintiffs, affirmed in general term, and defendants again appeal.

It is also claimed by the respondent that the moneys paid may be recovered back upon the ground that they were paid under a mistake of fact. Even if this were so, it affords no claim against a third person who has made Joseph H. Choate, for appellants. John no request for the payment of such moneys; J. Macklin and William C. Beecher, for rebut a more conclusive answer to the conten-spondents. tion rests in the fact that there is no evidence that any such mistake occurred.

The case is destitute of any evidence that the defendant's testatrix was not a proper object of bounty at the time the relief was extended to her.

The judgment of the general term, and that entered upon the report of the referee, should therefore be reversed, and a new trial ordered, with costs to abide the event. All concur.

117 N. Y. 204)

PECKHAM, J. This action was commenced by the plaintiffs, who are the executors of the will of Mrs. Elizabeth F. Floyd, deceased, and trustees under its provisions, to obtain a construction of that instrument. At special term the court held that the trust provided for therein was valid, and that it continued until the youngest grandchild named in the will arrived at age, or his death before that event, and until the death of George T. Vingut, and provision was made for the payment of the accumulations spoken of in the will. ROE et al. v. VINGUT et al.1 The general term affirmed the judgment en(Court of Appeals of New York. Nov. 26, 1889.) tered upon this decision, with a slight modiWILLS-CONSTRUCTION-TRUSTS-ACCUMULATIONS. fication, by which it struck out the provision 1. A testatrix devised her estate in trust to in that judgment permitting the trustees to her executors, during the lives of her son-in-law sell the real estate which was unproductive; and her youngest grandchild the living, naming them, to invest the rents and profits thereof for it being held that there was no such power the benefit of her grandchildren living at her death of sale granted to the trustees. From the or born thereafter, during their respective minori- affirmance of the general term the defendants ties; and, on the arrival of age of her youngest have appealed here. grandchild and the death of her son-in-law, she devised all the land of which she died seized, and that to be bought by the executors, with the rents and profits, to her grandchildren then living. Held, that the will would be construed to support the validity of the trust, limiting the same on the life of the youngest grandchild in being at the time of its creation, and named by testatrix.

2. After devising her estate in trust to her executors for the accumulation of the rents and prof1Affirming 1 N. Y. Supp. 914.

Mrs. Floyd died in November, 1885, leaving the will in question. She was possessed of quite a large estate, and she had but one child, a married daughter, the wife of the defendant George T. Vingut. The daughter was, when the will was made and when the testatrix died, the mother of five children, Benjamin Van Horne Vingut being the youngest, and he was born December 23, 1879, and the

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