Sidebilder
PDF
ePub

a license to permanently flood a part of bis damage he did not get adequate compensation tract of land for the maiðtenance of the caval, in the price paid for the grant or license, and is presumed to have taken into consideration greater injury than he contemplated has rethe damage to the residue of his tract which sulted from such reasonable use, it is damnum would accrue to him from the proper and rea- absque injuria. sonable use of the right granted. If for such The judgment of the Circuit Court is affirmed.

ALABAMA SUPREME COURT.

C. McANALLY, Appt.,

V.
ALABAMA INSANE HOSPITAL.

wife capacity to contract as if sole, "with the assent or concurrence of her busband expressed in writing," and 8 2350, authorizing her to engage in trade or business without bis consent, if he is of unsound mind or has abandoned her.

(........ Ala.........)

(February 6, 1896.) A contract by a married woman to pay for the support of her insane husband A . in an asylum, not made in the mode provided by

the Birmingbam City Court in favor of statute, is not valid under Code, $ 2346, giving a plaintiff in an action brought to enforce de

NOTE.-Insanity of husband as affecting wife's And in Re Edwards, 2 Macn. & G. 134, an order disabúity of coverture.

was made for payment of a lunatic's maintenance I. Generally,-wife as head of family.

to a married woman who was the committee of his. II. As to separate property and rights of wife. person on her separate receipt, ber solicitor underIII. As to dower rights.

taking that the money sbould be duly applied. IV. As to community property.

And in Estcourt v. Ewington, 9 Sim. 252, where V. As to property and rights of husband.

an attachment was issued against a married man

for want of answer of himself and wife, and the I. Generally,-wife as head of family.

sheriff returned that the husband was insane and The cases are hopelessly conflicting, but it may be therefore incapable of answering, it was ordered possible to draw the conclusion from them that the that the wife should answer separately, and that wife of an insane man is to be regarded as the head the service of subpoena on her should be deemed of the family so far as may be necessary to its good service, and that the senior clerk should be proper care and maintenance. But even this can appointed guardian of the husband to put in his be regarded only as a general, and not as an univer- answer. sal, rule.

So, the wife of an insane husband may employ Thus, the wife of an insane man should be re- the selectmen of the town to commit him to an in. garded as the head of the family and entitled to its sane asylum under N. H. Rev. Stat. chap. 9, $ 18, control during his insanity, and she has the right providing that the parent, guardian, or friends of as against his father to control his abiding place or an insane person may cause him to be sent to an change his domicil. Robinson y. Frost, 54 Vt. 105, asylum with the consent of the trustees and there 41 Am. Rep. 835.

supported on such terms as they may agree, the And the guardianship of an insane husband for wife being regarded as the friend of the husband whom no statutory guardian had been appointed in such case. Davis v. Merrill, 47 N. H. 208. is in his wife rather than his father, and she may And in England the wife of a lunatic would apenter the father's dwelling wbere they had tempo- pear to have power to prosecute an inquisition of rarily occupied an apartment, and remove ber bus- lupacy against him. See Re F. -, 2 De G. J. & S. band notwithstanding the father's opposition. 89, and Chester v. Rolfe, 4 DeG. M. & G. 798, 18 Ibid.

Jur. 114, 23 L. J. Ch. N. S. 233, infra, V. So, in Gustin v. Carpenter, 51 Vt, 585, an insane But the wife of an alleged lunatic is not considhusband was spoken of as being intellectually dead ered as a friend or relative of her husband within for the present.

tbe Maine statute allowing the appointment of a Add in Forbes v. Moore,'32 Tex. 195, the wife is guardian upon the application of any friend or also said to be the head of the family during the relative, on the ground tbat busband and wife husband's insanity. See infra, IV.

should not be permitted to act adversely to each And sbe is also spoken of as the head of the other except in cases of violence or divorce. Re family in Sawyer 9. Cutting, 23 Vt. 486, infra, V. Howard, 31 Me. 552.

So, in Wenman's Case, 1 P. Wme. 701, the wife of And physical or mental incapacity is not ina lunatic was treated as his custodian, and was cluded within tbe words “any other cause" in Wis. committed for contempt of court for not obeying Rev. Stat. chap. 95, 8 4, providing that any married an order to produce him before a commission woman whose husband, either from drunkenness, granted to inquire as to his lunacy, where it ap- profligacy, or any other cause shall neglect or repeared tbat she had been with him and had been fuse to provide for her support or the support and instrumental in removing him from place to place education of her children, shall have the right in in order to avoid his production.

her own name to transact business and to receive And in Bird v. LeFevre, 4 Bro. Ch. 100, interest and collect her own earnings, as such words must on a fund in court belonging to a person afficted be understood to refer to like or similar causes. with imbecility was ordered to be paid to his wife Edson v. Hayden, 20 Wis. 683. for the maintenance of himself and his family, it And the wife of an insane man under guardianappearing to be for the benefit of the family that ship cannot maintain an action to recover possesthe interest should be so paid.

sion of property belonging to her in ber own nam

fendant's liability on a bond given by her to tainder of treason or felony; (2) banish ment plaiotiff. Reversed.

from or adjuration of the realm; (3) entering Defendant's husband was in need of treat- into religion—that is becoming a monk proment at the hospital. Defendant and E. F. fessed. Enslen executed a bond to the hospital condi. Tbird, wbere the husband was

an alien tioned that so long as the busband remained in enemy. the hospital defendant should supply him with Fourth, where the husband was an alien and clothing and pay the hospital charges. Plain had never been in England. tiff alleged that the clothing was not furnished Arthur v. Broadnax, 3 Ala. 557, 37 Am. and charges were not paid, and it therefore Dec. 707; Manby v. Scott, 3 Smith, Lead. Cas. brought this suit on the bond.

1752; Gregory v. Paul, 15 Mass. 31; Roland v. Further facts appear in the opinion. Logan, 18 Ala. 307; Rhea v. Rhenner, 26 U. S.

Messrs. C. B. Powell and Joseph G. 1 Pet. 105, 7 L. ed. 72; Love v. Moynehan, 16 Crews for appellant.

III, 277, 63 Am. Dec. 306; Carstens v. HanselMessrs. Ward & Campbell, for appellee: man, 61 Mich. 426.

At common law a wife was incapable of The husband was at common law liable for making a contract.

the wife's engagements for necessaries furn1 Co. Litt. 1120-129; Reeve, Dom. Rel. 98; ished her upon the ground of an implied Arthur v. Broadnax (Ala.) 37 Am. Dec. 709, agency. Freeman's note.

Manby v. Scott, supra; Sawyer v. Cutting, 23 Exceptions grew up and fastened themselves Vt. 486; Benjamin v. Benjamin, 15 Coon. 347, upon the body of the law. Originally they 39 Am. Dec. 384; Freestone v. Butcher, 9 Car. were these:

& P. 643. First, where the wife was a sole trader by the An insape husband was liable for the wife's custom of London, an exception which of support upon the same ground. course never obtained in this country.

Manby v. Scott, 3 Smith, Lead. Cas. 1767. Second, where the husband was civiliter During the husband's insanity the wife is mortuus - civilly dead. As the modes of civil the head of the family and has control of it. death existing at common law are these: (1) at- Robinson v. Frost, 54 Vt.105, 41 Am. Rep. 835.

and the joinder of her husband as plaintiff is a duce it being in its nature a personal one to the ground for the dismissal of the action under Mo. husband whicb cannot be exercised by another. Rev. Stat. 1879, 8 5804, providing that it shall be the Ibid. duty of the guardian of an insane person to prose- So, in Steed v. Cadley, 2 Myl. & K. 52, a fund becute and defend all actions instituted in bebalf of queathed to a married woman whose husband or against bis ward. Hayes v. Miller, 81 Mo. 424. was of unsound mind, but against whom no com

And the fact that two of three trustees have died, mission had issued, was transferred into court on and the third, who was a widow, had married a per- bill filed by the husband and wife for payment of son afterwards found to be a lupatic, authorizes the legacy to their joint account, and afterwards the appointment of new trustees in their places, in consideration of their poverty, on the wife's apwhere it bad become impossible to obtain a pay- plication, the dividends were ordered to be paid to ment of the dividends, as the bank would not pay ber for life. them to the wife without the husband's concur- And a settlement of one half of a fund to which rence. Re Wood, 3 De G. F. & J. 125.

a lunatic was entitled upon his wife, made upon See also Shaw v. Thompson, 16 Pick. 198, 26 Am. her application and approved by the master by Dec. 655, infra II., holding that the husband's in- writing at the foot of the draft, after whicb the sanity does not remove the wife's disability or con- lunatic died without further proceedings having fer on ber any new power.

been taken, will pot preclude the wife from retir

ing from the proposed settlement and claiming for II. As to separate property and rights of wife.

herself the whole of such fund to which she was As to the separate and independent rights of the entitled upon the distribution of the intestate's eswife, though the decisions are conflicting, it would tate. Baldwin v. Baldwin, 5 De G. & Sm. 325. seem that the insanity of the husband is generally In Shaw v. Thompson, 16 Pick, 198, 28 Am. Dec. regarded as removing, or at least affecting, the 655, however, it was held that the fact that a busdisability of coverture to some extent.

band is non compos mentis does not remove the disThus, the fact that a husband is insane and out ability of his wife or confer on her any new power of the state in an insane asylum without will or to bind hereelf by contract, and she cannot render ability to returo endows the wife with as much herself liable on contract for vecessaries supplied right to act in her own name with reference to her her, as the law would still raise an implied promise own right as she would have if her husband was against the husband for such necessaries. civilly dead or had abjured the realm and aban- So, a wife appointed by commissioners of insandoved her. Gustin v. Carpenter, 51 Vt. 585.

ity custodian of her insane husband cannot recover And a married woman whose husband is insane compensation for services in that capacity from and confined in an insane asylum in anotber state bis estate under Iowa Code, $ 2507, making the exmay sue in her own name for a personal tort to penses of the family chargeable upon the property her, which is a cause of action which would sur- of both husband and wife or of either of them. vive to her. Ibid.

Grant v. Green, 41 Iowa, 88. So, a married woman having property, and whose And the wife of an insane husband, who conhusband is insane and has no settlement and can- tracts with his guardian to care for bim for a specinot reduce ber property to possession and thereby tied sum for her services, cannot recover thereon gain a settlement, may herself gain one in her own as the agreement is without consideration, the rigbt by virtue of the possession of her property services being such as she owed to her husband in as if she were sole. Andover v. Merrimack County, virtue of the relation existing between them. 37 N. H. 437.

Ibid. Nor can a wife's property be reduced to the possession of tbe husband where he is insane, by the

III. As to dower rights. act of his guardian, the right of election to so re- The husband's insanity does not seem to affect When a husband is insane and confined in this state, and the wife has full legal capacity an asylum in another state the wife may sue to contract in writing, as if she were sole, with as if sole.

the assent or concurrence of her husband exGustin v. Carpenter, 51 Vt. 585.

pressed in writing.” Code, S 2346. This statMr. James E. Webb also for appeilee. ute, as to contracts therein referred to, does

not enlarge the capacity of a married woman Haralson, J., delivered the opinion of the to contract in all of the usual modes; but, as court:

we bave heretofore held, it is enabling and reAt common law, marriage vested in the hus- strictive,-enabling, so as to authorize her to band the title of the wife to all personal chat contract in any manner that she could do if a tels of which she had actual or legal possession; feme sole, with the written consent and concurand to her real estate he gained a title only to rence of her husband; and restrictive, in that the rents and profits during coverture, but the it denies this power, except in the specific mode estate itself remained entire to the wife, after prescribed in the statute. For the full exercise the death of her husband, or to her beirs, if of the power to contract, two things are necesshe died before him, unless by the birth of a sary,- -a written contract by the wife, and the child he became tenant for life by the curt- written assent or concurrence of the husband esy. 2 Brick. Dig. pp. 71, 72, SS 36, 51. At for her to make or enter into the contract. common law, the wife was generally in- Scott v. Cotten, 91 Ala. 628. One of the excapable of entering into any valid contract to ceptions to the common-law rule to which we bind either her person or property, and could have referred, disabling the wife to contract, not be sued at law in an action ex contractu; was, that if the husband abandoned her, and and, except as modified by statute, this disa- departed into another country without the in bility continues to exist. 2 Story, Eq. Jur. tention of returning, the law conferred on her $ 1397; Reeve, Dom. Rel. 138; 14 Am. & Eng. the capacity of contracting and suing as though Enc. Law, p. 604; Davis v. Carroll, 71 Md. 570; she were sole. Arthur v. Broadnax, 3 Ala. 557, Canal Bank v. Partee, 99 U. S. 332, 25 L. ed. 37 Am. Dec. 707; James v. Stewart, 9 Ala. 855; 393; 3 Brick. Dig. p. 545, SS 52, 53. This Mead v. Hughes, 15 Ala. 148, 50 Am. Dec. 123; rule of the common law has been modified in Roland v. Logan, 18 Ala. 307. Or, when the

the wife's power to convey or bar her right to , legal right to dispose of so much of the common dower.

property of husband and wife as may be necessary Thus, where a wife separate and apart from her to supply the wants of herself and his and her husband could not convey or bind her dower or children. Forbes v. Moore, 32 Tex. 195. homestead right by deed or mortgage, her joinder And no recovery can be had by a husband who in a deed or mortgage with her husband, who is had been insane, after his recovery, from persons insane and incompetent to make a deed, will not employed by his wife during his insanity to disbind her. Brothers v. Bank of Kaukauna, 84 Wis. pose of community property for the support of 381.

herself and children, unless there was an unAnd a joinder by a wife with her husband in a necessary squandering of the property by them. deed of his property, which had been sold by bis Ibid. guardian while he was insane and incapable of But the rule that the wife may sell community contracting, will not bar ber dower or estop her property or the property of her husband where he is from claiming dower under Mo. Rev. Stat. 1879, insane springs only from the necessity of the family $8 669, 2197, providing that a married woman may to bave a support, and would not apply where the relinquish her dower in the real estate of her hus- sale would deprive the family of the only piece of band by their joint deed, acknowledged and certi- property which could have contributed to its supfied as required by statute. Rannells v. Gerner, 80 port. Heidenheimer v. Thomas, 63 Tex. 287. Mo. 479.

And the wife of an insane man has no power to Nor will the joinder of a wife with her husband dispose of community property or the separate in a deed of his property, made by bis guardian property of her husband, where the statute makes when the husband was insane and incompetent to provision for the support of the family and the contract. Rannells v. Isgrigg, 99 Mo. 19.

education of the children. Ibid. And the Massachusetts statute, providing that And a deed made by a husband and wife of the no conveyance by a married woman of any real homestead when the husband is non compos mentis, property except a lease for a term not exceeding for the purpose of the payment of a debt already one year shall be valid without the assent of her due from the husband, is invalid and ineffectual to husband in writing or his joining with her in the transfer her homestead, though she properly acconveyance, contemplates an intelligent assent of a knowledged it, where the homestead constituted sound mind capable of contracting and advising, her entire property. Ibid. and a conveyance made by her in which her hus- In Heidenheimer v. Thomas, supra, Forbes v. band joins when he is insane is void to the same ex- Moore, supra, was criticised, the court saying that tent as if there had been no assent, and no subse- it did not appear in that case that the wife had disquent action or failure to act on his part could give posed of any property, and the remarks made in it validity. Leggate v. Clark, 111 Mass. 308.

the course of the opinion, so far as could be seen And an order of the probate judge committing a from the record, were not necessary to the decihusband to an ipsane asylum is not prima facie sion of the cause. evidence of or admissible to prove his insanity on an issue whether he was of sufficient mental ca

V. As to property and rights of husband. pacity to give an intelligent assent to his wife's The general rule would seem to be that laid down conveyance of real estate. Ibid.

in Richardson v. Du Bois, L. R. 5 Q. B, 51, 39 L. J. See also Heidenheimer v. Tbomas, 63 Tex. 287, Q. B. N. S. 69, 21 L. T. N. S. 635, 18 Week. Rep. 62, 10 infra, IV.

Best & S. 830, that the agency of the wife of a lunatic, ai

her authority to pledge her husband's IV. As to community property.

credit do not differ from those ordinarily implied During the insanity of the husband the wife is from the relation of husband and wife. the head of the family, and as such head bas the Thus, the estate of an insane husband is bound the family when there is no common property. But while a married woman, whose husband was

husband was civilly dead,-outlawed, ban. must support her there. He may be sued for isbed, imprisoned for life, etc.,—the wife had necessaries there supplied to her. Or, should the powers of a feme sole. 14 Am. & Eng. he be the one in the asylum, the wife, though Enc. Law, p. 591. The reason for ingrafting sane, may charge him with necessaries while the exception referred to on the disabilities of he is there confined.” Bishop, Mar. & Div. the wife to contract at common law was, that $ 565. without it oftentimes married women whose One is not civilly dead who is insane, nor,husbands bad renounced their wives, families, if not removed beyond his state, -can he be and country “could obtain no credit on ac- said to be where process may not be served on count of their husbands, for no process could him. He is responsible for contracts made reach them; and they could not recover for a before he became insane, and may be sued on trespass upon their persons or their property, them. And that one insane may be the better or for the labor of their hands. They would taken care of, and not become a charge on his be left the wretched dependents upon charity, family, the statutes of this state provide for or driven to the commission of crimes to ob- the appointment of a guardian of his person tain a precarious support. Gregory v. Paul, and property. Code, $ 2390. So far as be is 15 Mass. 31; Mead v. Hughes, supra. The concerned, if a married man, the wife has no same reasons, it is contended for the appellee, occasion to enter into a contract for his support apply to ingraft an inception in favor of mar with an asylum. The same reasons, then, for ried women in cases of the insanity of their the rule invoked as to the capacity of the wife husbands, and for the further reason that, the to contract, whose husband is civilly dead, or husband being insane, no marital right can be who has abandoned his wife and family, and affected, and every presumption of possible gone to reside in another state, with no intencoercion is removed out of the way,-citing tion of returning, do not apply to cases of the Reeve, Dom. Rel. 138. But, the reasons in the mere insanity of the husband. In the Ameritwo cases are not the same. It has been held can & English Encyclopædia of Law, it is said as the common-law doctripe that "the hus on this subject that, "as a general rule, the inband must maintain the wife, not only during sanity, infancy, or other incapacity of a huscohabitation, but whenever there is a separa- band does not affect the personal status of his tion without her fault. Insanity in either is wife,” and the compilers while stating that not a fault; therefore, whether he or she is in there seemed to be no cases on the point, sane, or though both are, he must still provide added that the “proposition is an easy infer for her. If she is in an insane asylum, helence from the well-known principles on this

for necessaries furnished his wife upon ber request, sick and his mind was wandering and he was unupon an implied contract to provide them for her conscious of what was transpiring and conduring cohabitation. Pearl v. M'Dowell, 3 J. J. tinued in that condition until his death, may be reMarsh. 658, 20 Am. Dec. 199; Davidson v. Wood, 1 garded as the head of the family for the purpose DeG. J. & S. 465, 9 Jur. N. S. 589, 11 Week, Rep. 791, of taking care of the property and providing neces. 8 L. T. N. S. 476.

saries for it, she is not thereby constituted the genAnd the fact that the wife has a separate income eral agent of her husband, and authorized to does not affect the rule. Davidson v. Wood, supra. transact his business generally, or to transfer his

And the wife of a lunatic, though he is confined property to pay his debts. Sawyer v. Cutting, in an asylum as dangerous, may pledge his credit Vt. 486. for necessaries for herself and bind his estate there- And the fact that a husband is a lunatic and confor, and the person supplying her may sue the bus-fined in an insane asylum does not authorize his band in an action for debt. Read v. Legard, 4 Eng, wife to sell a crop of wheat belonging to him to L. & Eq. 523.

pay a particular creditor to the prejudice of others. So, an action of assumpsit will lie against a hus Alexander v. Miller, 16 Pa. 215. band to recover a sum of money due for the Nor is an insane husband in a lunatic asylum lituition of bis children on a contract made by his able for repairs upon bis house in which bis wife wife during the pendency of a bill in chancery for and ber children reside upon her order, though the divorce and alimony filed by the wife on the ground, repairs were necessary for the house, where she had among others, that the husband was a lunatic, un- been supplied with money sufficient and applicable der which an order had been made allowing a desig- to the payment for sucb necessary repairs. Richnated sum per annum for the support and mainte- ardson v. Du Bois, L. R. 5 Q. B. 51, 39 L. J. Q. B. N. nance of herself and the children, the husband hav- S. 69, 21 L. T. N. S. 635, 18 Week. Rep. 62, 10 Best & ing been subsequently restored to sanity and the S. 830. bill dismissed. Harris v. Davis, 1 Ala. 259.

And the fact that the committee of the person of And the estate of an alleged lunatic is bound for a lunatic is his wife will not release her from the the costs of lunacy proceedings brought by his wife charge of malversation, as against the committee against him though she was living apart from him of the estate, for having made savings out of the at the time, and he recovered within a few months, moneys supplied for his support, though she propwhere she had fair reason for believing that he was erly discharged her duty as committee of the perin such a state as to require the intervention of a son. Stepbenson v. Holmes, 3 L. J. Ch. N. S. 41. court to protect their persons and property. Re In Rock v. Slade, 7 Dowl, P. C. 22, 1 Arp. 346, F--, 2 De G. J. & S. 89.

Jur. 993, however, it was held that the wife of a And a solicitor employed by the wife of a lunatic lunatic who has no committee has a sufficient imupon an issue of a commission de lunatico inquir- plied authority to sue in the name of the lunatic endo against him on her petition is entitled to stand for funds due to him. directly in his own right as a creditor against the And in Forbes v. Moore, 32 Tex. 195, the wife of estate of the lunatic for his costs, where the pro- an ipsane man was held to have the right to dispose ceedings were reasonable and for the benefit of the of so much of the separate property of the hus. iunatic. Chester v. Rolfe, 4 De G. M. & G. 798, 18 band as may be necessary to supply the wants of Jur. 114, 23 L. J. Ch. N. S. 233.

F. H, B.

subject." Volume 14, p. 592. Said S 2346 of bilities of the husband," and that “the earnings the Code, touching the wife's power in this of the wife are ber separate property.” SS 2341, state to contract with the written consent of 2342. These statutes, regulating the rights her husband, is in derogation of the common and liabilities of husband and wife, were delaw, and it would seem that none of the excep- signed to furnish a complete system within tions to which we have been referring, on the itself, not dependent on common-law rules for power of the wife to contract at common law, its enforcement. What the wife may do in have anything to do with the statutes of this case of the insanity of her husband, in respect state on the subject. These statutes seem to to contracting and taking care of herself and create their own exceptions to the wife's power her property, is carefully provided for in the to contract. In $ 2348 it is provided that "if statutes, and it would seem, on a common the husband be non compos mentis, or bas principle of interpretation, she is excluded abandoned the wife, or is a nonresident of the from doing anything more in this respect than state, or is imprisoned under a conviction for is authorized by statute. Her power to concrime for a period exceeding two years, the tract under the statute being specified and wife may alienate her lands as if she were sole," limited by the terms of the statute, she is reand, -as to ber personal property,—“if the hus stricted to the mode prescribed. Ashford v. band is living apart from the wife, without Watkins, 70 Ala. 160; Scott v. Cotten, supra; fault on her part, or if he be of unsound mind, Vincent v. Walker, 93 Ala. 169. We bave no the wife may convey or dispose of such prop- occasion, therefore, in this case, to apply any erty in any manner, as if she were sole.” In of the common-law rules invoked in favor of the section providing that the wife may, with the liability of the appellant, on the bond she the consent of the husband expressed in writ- gave to indemnify the asylum on the liability ing, and under the conditions specified, enter of her husband to it for his support. If in any into and pursue any lawful trade or business case these rules may be made applicable to a as if she were sole, it is provided that "the married woman and her estate, they are wantconsent of the husband is not necessary, if he ing in application to the case in hand. The be of unsound mind, or has abandoned his appellant was without authority to enter into wife, or is a nonresident of the state, or is im- any such obligation as the one here sued on, prisoned under conviction for crime.” S 2350. and it is not binding on her. Again, it is provided that “all property of the Reversed and remanded. wife beld by her previous to the marriage, or to which she may become entitled after the Brickell, Ch. J., and Coleman, J., dismarriage in any manner, is the separate prop- sent. erty of the wife, and is not subject to the lia

PENNSYLVANIA SUPREME COURT,

Edwin A. LANDELL, Jr., et al., Appts.,

Matthew HAMILTON et al. .

ing the covenant in equity as to the space below the top of (the wall, but will not absolutely terminate the covenant.

(175 Pa. 327.)

(May 4, 1896.)

[ocr errors]

1. The test in equity to determine whether a covenant in a deed runs with the land is the in- Court of Common Pleas, No. 2, for Philatention of the parties.

delphia County refusing an injunction to re2. A covenant that the "house" on allot strain defendants from constructing a building

conveyed "shall be forever hereafter on certain property in alleged violation of a restricted from having any building or part restrictive covenant. Reversed. of a building attached to the said messuage

The facts are stated in the opinions. thereon erected" more than 10 feet high is pot Messrs. Henry K. Fox and Charles C. limited to the house or building then existing Lister, for appellants: on the land.

Any words indicating the intention of the 3. A change in the use of premises from parties create a covenant running with the

residence to business purposes after the making land. of a covenant restricting erections thereon Paschall v. Passmore, 15 Pa. 307; Cromwel's above a certain height is not sufficient to destroy Case, 2 Coke, 71a, and Sheppard's Touchstone, the effect of the covenant.

122; Hartung v. Witte, 59 Wis. 285; Batley v. On Rehearing.

Foerderer, 162 Pa. 460. 4. Building along the division line and While at common law it would be pecessary

partly on each lot a solid wall higher to make an inquiry as to the relative difference than a covenant requires the servient lot to re- between a condition and a covenant, yet equity main unobstructed for the purpose of furnishing goes directly to its substantial elements and inlight and air to the dominant lot will prevent quires what duty does it assure and to whom. the dominant owner, who builds it, from enforc

Clark v. Martin, 49 Pa. 297. NOTE.-For restrictions on buildings as ease

Tbe manifest and only purpose of the parties ments of light and air, see note to Case v. Minot to the covenant was to assure light and air to (Mass.) 22 L. R. A. 536.

the properties adjoining the restricted premises.

« ForrigeFortsett »