fendant's liability on a bond given by her to | tainder of treason or felony; (2) banishment plaintiff. Reversed. from or adjuration of the realm; (3) entering into religion-that is becoming a monk professed. Defendant's husband was in need of treat ment at the hospital. Defendant and E. F. Enslen executed a bond to the hospital conditioned that so long as the husband remained in the hospital defendant should supply him with clothing and pay the hospital charges. Plaintiff alleged that the clothing was not furnished and charges were not paid, and it therefore brought this suit on the bond. Further facts appear in the opinion. Messrs. C. B. Powell and Joseph G. Crews for appellant. Messrs. Ward & Campbell, for appellee: At common law a wife was incapable of making a contract. 1 Co. Litt. 112a-129; Reeve, Dom. Rel. 98; Arthur v. Broadnax (Ala.) 37 Am. Dec. 709, Freeman's note. Exceptions grew up and fastened themselves upon the body of the law. Originally they were these: First, where the wife was a sole trader by the custom of London, an exception which of course never obtained in this country. Second, where the husband was civiliter mortuus-civilly dead. As the modes of civil death existing at common law are these: (1) at and the joinder of her husband as plaintiff is a ground for the dismissal of the action under Mo. Rev. Stat. 1879, § 5804, providing that it shall be the duty of the guardian of an insane person to prosecute and defend all actions instituted in behalf of or against his ward. Hayes v. Miller, 81 Mo. 424. Third, where the husband was an alien enemy. Fourth, where the husband was an alien and had never been in England. Arthur v. Broadnax, 3 Ala. 557, 37 Am. Dec. 707; Manby v. Scott, 3 Smith, Lead. Cas. 1752; Gregory v. Paul, 15 Mass. 31; Roland v. Logan, 18 Ala. 307; Rhea v. Rhenner, 26 U. S. 1 Pet. 105, 7 L. ed. 72; Love v. Moynehan, 16 Ill. 277, 63 Am. Dec. 306; Carstens v. Hanselman, 61 Mich. 426. The husband was at common law liable for the wife's engagements for necessaries furnished her upon the ground of an implied agency. Manby v. Scott, supra; Sawyer v. Cutting, 23 Vt. 486; Benjamin v. Benjamin, 15 Conn. 347, 39 Am. Dec. 384; Freestone v. Butcher, 9 Car. & P. 643. An insane husband was liable for the wife's support upon the same ground. Manby v. Scott, 3 Smith, Lead. Cas. 1767. During the husband's insanity the wife is the head of the family and has control of it. Robinson v. Frost, 54 Vt. 105, 41 Am. Rep. 835. duce it being in its nature a personal one to the husband which cannot be exercised by another. Ibid. So, in Steed v. Cadley, 2 Myl. & K. 52, a fund bequeathed to a married woman whose husband was of unsound mind, but against whom no comAnd 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 lunatic, 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 had 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 them to the wife without the husband's concurrence. Re Wood, 3 De G. F. & J. 125. See also Shaw v. Thompson, 16 Pick. 198, 26 Am. Dec. 655, infra II., holding that the husband's insanity does not remove the wife's disability or confer on her any new power. II. As to separate property and rights of wife. As to the separate and independent rights of the wife, though the decisions are conflicting, it would seem that the insanity of the husband is generally regarded as removing, or at least affecting, the disability of coverture to some extent. Thus, the fact that a husband is insane and out of the state in an insane asylum without will or ability to return endows the wife with as much right to act in her own name with reference to her own right as she would have if her husband was civilly dead or had abjured the realm and abandoned her. Gustin v. Carpenter, 51 Vt. 585. And a married woman whose husband is insane and confined in an insane asylum in another state may sue in her own name for a personal tort to her, which is a cause of action which would survive to her. Ibid. So, a married woman having property, and whose husband is insane and has no settlement and cannot reduce her property to possession and thereby gain a settlement, may herself gain one in her own right by virtue of the possession of her property as if she were sole. Andover v. Merrimack County, 37 N. H. 437. Nor can a wife's property be reduced to the possession of the husband where he is insane, by the act of his guardian, the right of election to so re her for life. And a settlement of one half of a fund to which a lunatic was entitled upon his wife, made upon her application and approved by the master by writing at the foot of the draft, after which the lunatic died without further proceedings having been taken, will not preclude the wife from retiring from the proposed settlement and claiming for herself the whole of such fund to which she was entitled upon the distribution of the intestate's estate. Baldwin v. Baldwin, 5 De G. & Sm. 325. In Shaw v. Thompson, 16 Pick. 198, 26 Am. Dec. 655, however, it was held that the fact that a busband is non compos mentis does not remove the disability of his wife or confer on her any new power to bind herself by contract, and she cannot render herself liable on contract for necessaries supplied her, as the law would still raise an implied promise against the husband for such necessaries. So, a wife appointed by commissioners of insanity custodian of her insane husband cannot recover compensation for services in that capacity from his estate under Iowa Code, § 2507, making the expenses of the family chargeable upon the property of both husband and wife or of either of them. Grant v. Green, 41 Iowa, 88. And the wife of an insane husband, who contracts with his guardian to care for him for a specified sum for her services, cannot recover thereon as the agreement is without consideration, the services being such as she owed to her husband in virtue of the relation existing between them. Ibid. III. As to dower rights. The husband's insanity does not seem to affect When a husband is insane and confined in an asylum in another state the wife may sue as if sole. Gustin v. Carpenter, 51 Vt. 585. Mr. James E. Webb also for appellee. Haralson, J., delivered the opinion of the court: At common law, marriage vested in the husband the title of the wife to all personal chattels of which she had actual or legal possession; and to her real estate he gained a title only to the rents and profits during coverture, but the estate itself remained entire to the wife, after the death of her husband, or to her heirs, if she died before him, unless by the birth of a child he became tenant for life by the curtesy. 2 Brick. Dig. pp. 71, 72, SS 36, 51. At common law, the wife was generally incapable of entering into any valid contract to bind either her person or property, and could not be sued at law in an action ex contractu; and, except as modified by statute, this disability continues to exist. 2 Story, Eq. Jur. $1397; Reeve, Dom. Rel. 138; 14 Am. & Eng. Enc. Law, p. 604; Davis v. Carroll, 71 Md. 570; Canal Bank v. Partee, 99 U. S. 332, 25 L. ed. 393; 3 Brick. Dig. p. 545, $$ 52, 53. This rule of the common law has been modified in this state, and "the wife has full legal capacity to contract in writing, as if she were sole, with the assent or concurrence of her husband expressed in writing." Code, § 2346. This statute, as to contracts therein referred to, does not enlarge the capacity of a married woman to contract in all of the usual modes; but, as we have heretofore held, it is enabling and restrictive,-enabling, so as to authorize her to contract in any manner that she could do if a feme sole, with the written consent and concurrence of her husband; and restrictive, in that it denies this power, except in the specific mode prescribed in the statute. For the full exercise of the power to contract, two things are necessary,-a written contract by the wife, and the written assent or concurrence of the husband for her to make or enter into the contract. Scott v. Cotten, 91 Ala. 628. One of the exceptions to the common-law rule to which we have referred, disabling the wife to contract, was, that if the husband abandoned her, and departed into another country without the intention of returning, the law conferred on her the capacity of contracting and suing as though she were sole. Arthur v. Broadnax, 3 Ala. 557, 37 Am. Dec. 707; James v. Stewart, 9 Ala. 855; Mead v. Hughes, 15 Ala. 148, 50 Am. Dec. 123; 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. Thus, where a wife separate and apart from her husband could not convey or bind her dower or homestead right by deed or mortgage, her joinder in a deed or mortgage with her husband, who is insane and incompetent to make a deed, will not bind her. Brothers v. Bank of Kaukauna, 84 Wis. 381. And a joinder by a wife with her husband in a deed of his property, which had been sold by his guardian while he was insane and incapable of contracting, will not bar her dower or estop her from claiming dower under Mo. Rev. Stat. 1879, §§ 669, 2197, providing that a married woman may relinquish her dower in the real estate of her husband by their joint deed, acknowledged and certified as required by statute. Rannells v. Gerner, 80 Mo. 479. Nor will the joinder of a wife with her husband in a deed of his property, made by his guardian when the husband was insane and incompetent to contract. Rannells v. Isgrigg, 99 Mo. 19. And the Massachusetts statute, providing that no conveyance by a married woman of any real property except a lease for a term not exceeding one year shall be valid without the assent of her husband in writing or his joining with her in the conveyance, contemplates an intelligent assent of a sound mind capable of contracting and advising, and a conveyance made by her in which her husband joins when he is insane is void to the same extent as if there had been no assent, and no subsequent action or failure to act on his part could give it validity. Leggate v. Clark, 111 Mass. 308. And an order of the probate judge committing a husband to an insane asylum is not prima facie evidence of or admissible to prove his insanity on an issue whether he was of sufficient mental capacity to give an intelligent assent to his wife's conveyance of real estate. Ibid. property of husband and wife as may be necessary to supply the wants of herself and his and her children. Forbes v. Moore, 32 Tex. 195. And no recovery can be had by a husband who had been insane, after his recovery, from persons employed by his wife during his insanity to dispose of community property for the support of herself and children, unless there was an unnecessary squandering of the property by them. Ibid. But the rule that the wife may sell community property or the property of her husband where he is insane springs only from the necessity of the family to have a support, and would not apply where the sale would deprive the family of the only piece of property which could have contributed to its support. Heidenheimer v. Thomas, 63 Tex. 287. And the wife of an insane man has no power to dispose of community property or the separate property of her husband, where the statute makes provision for the support of the family and the education of the children. Ibid. And a deed made by a husband and wife of the homestead when the husband is non compos mentis, for the purpose of the payment of a debt already due from the husband, is invalid and ineffectual to transfer her homestead, though she properly acknowledged it, where the homestead constituted her entire property. Ibid. In Heidenheimer v. Thomas, supra, Forbes v. Moore, supra, was criticised, the court saying that it did not appear in that case that the wife had disposed of any property, and the remarks made in the course of the opinion, so far as could be seen from the record, were not necessary to the decision of the cause. V. As to property and rights of husband. The general rule would seem to be that laid down in Richardson v. Du Bois, L. R. 5 Q. B. 51, 39 L. J. See also Heidenheimer v. Thomas, 63 Tex. 287, Q. B. N. S. 69, 21 L. T. N. S. 635, 18 Week. Rep. 62, 10 infra, IV. IV. As to community property. During the insanity of the husband the wife is the head of the family, and as such head has the Best & S. 830, that the agency of the wife of a lunatic, and her authority to pledge her husband's credit do not differ from those ordinarily implied from the relation of husband and wife. Thus, the estate of an insane husband is bound husband was civilly dead.-outlawed, ban- must support her there. He may be sued for ished, 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." 1 Bishop, Mar. & Div. the wife to contract at common law was, that § 565. without it oftentimes married women whose husbands had renounced their wives, families, and country "could obtain no credit on account of their husbands, for no process could reach them; and they could not recover for a trespass upon their persons or their property, or for the labor of their hands. They would be left the wretched dependents upon charity, or driven to the commission of crimes to obtain a precarious support." Gregory v. Paul, 15 Mass. 31; Mead v. Hughes, supra. The same reasons, it is contended for the appellee, apply to ingraft an inception in favor of married women in cases of the insanity of their husbands, and for the further reason that, the husband being insane, no marital right can be affected, and every presumption of possible coercion is removed out of the way,-citing Reeve, Dom. Rel. 138. But, the reasons in the two cases are not the same. It has been held as the common-law doctrine that "the husband must maintain the wife, not only during cohabitation, but whenever there is a separation without her fault. Insanity in either is not a fault; therefore, whether he or she is insane, or though both are, he must still provide for her. If she is in an insane asylum, he for necessaries furnished his wife upon her request upon an implied contract to provide them for her during cohabitation. Pearl v. M'Dowell, 3 J. J. Marsh. 658, 20 Am. Dec. 199; Davidson v. Wood, 1 DeG. J. & S. 465, 9 Jur. N. S. 589, 11 Week. Rep. 791, 8 L. T. N. S. 476. And the fact that the wife has a separate income does not affect the rule. Davidson v. Wood, supra. And the wife of a lunatic, though he is confined in an asylum as dangerous, may pledge his credit for necessaries for herself and bind his estate therefor, and the person supplying her may sue the husband in an action for debt. Read v. Legard, 4 Eng, L. & Eq. 523. One is not civilly dead who is insane, nor,if not removed beyond his state,-can he be said to be where process may not be served on him. He is responsible for contracts made before he became insane, and may be sued on them. And that one insane may be the better taken care of, and not become a charge on his family, the statutes of this state provide for the appointment of a guardian of his person and property. Code, § 2390. So far as he is concerned, if a married man, the wife has no occasion to enter into a contract for his support with an asylum. The same reasons, then, for the rule invoked as to the capacity of the wife to contract, whose husband is civilly dead, or who has abandoned his wife and family, and gone to reside in another state, with no intention of returning, do not apply to cases of the mere insanity of the husband. In the American & English Encyclopædia of Law, it is said on this subject that, "as a general rule, the insanity, infancy, or other incapacity of a husband does not affect the personal status of his wife," and the compilers while stating that there seemed to be no cases on the point, added that the "proposition is an easy inference from the well-known principles on this sick and his mind was wandering and he was unconscious of what was transpiring and continued in that condition until his death, may be regarded as the head of the family for the purpose of taking care of the property and providing necessaries for it, she is not thereby constituted the general agent of her husband, and authorized to transact his business generally, or to transfer his property to pay his debts. Sawyer v. Cutting, 23 Vt. 486. And the fact that a husband is a lunatic and confined in an insane asylum does not authorize his wife to sell a crop of wheat belonging to him to pay a particular creditor to the prejudice of others. Alexander v. Miller, 16 Pa. 215. So, an action of assumpsit will lie against a husband to recover a sum of money due for the Nor is an insane husband in a lunatic asylum lituition of his children on a contract made by his able for repairs upon his house in which his wife wife during the pendency of a bill in chancery for and her 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 such 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 estate of an alleged lunatic is bound for the costs of lunacy proceedings brought by his wife against him though she was living apart from him at the time, and he recovered within a few months, where she had fair reason for believing that he was in such a state as to require the intervention of a court to protect their persons and property. Re F——, 2 De G. J. & S. 89. And the fact that the committee of the person of a lunatic is his wife will not release her from the charge of malversation, as against the committee of the estate, for having made savings out of the moneys supplied for his support, though she properly discharged her duty as committee of the person. Stephenson v. Holmes, 3 L. J. Ch. N. S. 41. In Rock v. Slade, 7 Dowl. P. C. 22, 1 Arn. 346, 2 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 insane man was held to have the right to dispose ceedings were reasonable and for the benefit of the iunatic. Chester v. Rolfe, 4 De G. M. & G. 798, 18 Jur. 114, 23 L. J. Ch. N. S. 233. But while a married woman, whose husband was of so much of the separate property of the hus- subject." Volume 14, p. 592. Said § 2346 of | bilities of the husband," and that "the earnings the Code, touching the wife's power in this of the wife are her separate property." SS2341, 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 has 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 her 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 have 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." 2350. and it is not binding on her. Again, it is provided that "all property of the wife held by her previous to the marriage, or to which she may become entitled after the marriage in any manner, is the separate property of the wife, and is not subject to the lia- | Reversed and remanded. Brickell, Ch. J., and Coleman, J., dissent. PENNSYLVANIA SUPREME COURT. Edwin A. LANDELL, Jr., et al., Appts., ". (175 Pa. 327.) ing the covenant in equity as to the space below the top of the wail, but will not absolutely terminate the covenant. (May 4, 1896.) APPEAL by plaintiffs from a decree of the Court of Common Pleas, No. 2, for Philadelphia County refusing an injunction to restrain defendants from constructing a building on certain property in alleged violation of a restrictive covenant. Reversed. The facts are stated in the opinions. Messrs. Henry K. Fox and Charles C. Lister, for appellants: Any words indicating the intention of the parties create a covenant running with the land. Paschall v. Passmore, 15 Pa. 307; Cromwel's Case, 2 Coke, 71a, and Sheppard's Touchstone, 122; Hartung v. Witte, 59 Wis. 285; Batley v. Foerderer, 162 Pa. 460. While at common law it would be necessary to make an inquiry as to the relative difference between a condition and a covenant, yet equity goes directly to its substantial elements and inquires what duty does it assure and to whom. Clark v. Martin, 49 Pa. 297. The manifest and only purpose of the parties to the covenant was to assure light and air to the properties adjoining the restricted premises. 228 PENNSYLVANIA SUPREME COURT. Equity will give effect to the intention and spirit of the restriction by restraining any impairment of the light and air. Clark v. Martin, supra; Muzzarelli v. Hul shizer, 163 Pa. 646; Ivory v. Burns, 56 Pa. 300; St. Andrews Lutheran Church's Appeal, 67 Pa. 512; Bald Eagle Valley R. Co. v. Nittany Valley R. Co. 171 Pa. 284, 29 L. R. A. 423; Wray v. Lemon, 81* Pa. 273; Philips's Appeal, 93 Pa. 50; Groff v. Bird-in-Hand Turnp. Co. 144 Pa. 152. The instrument, being the deed of the party to be bound, must be taken most strongly against him. of party walls make it imposible now to per- Peek v. Matthews, L. R. 3 Eq. 514; Child v. Dean, J., delivered the opinion of the court: In the year 1831, William Hause, being the owner of a lot of ground on the south side of Chestnut street, between Twelfth and Thirteenth streets, fronting on Chestnut 74 feet, and extending back to Sansom street 235 feet, Beeson v. Patterson, 36 Pa. 27; Miner's Ap-divided it into three lots, giving the middle peal, 61 Pa. 283; Klaer v. Ridgway, 86 Pa. 534. and western lot, each, a frontage on Chestnut Many cases have been found where a build-street of 25 feet, and the eastern one 24 feet on On each of the two ing restriction has been held to be invalid by the same street, all extending back at right reason of the changed conditions of the neigh angles to Sansom street. borhood, but for the most part these cases con- outer lots he built a 3 story brick house, covtain conditions or restrictions which affected ering the entire front, these main buildings exeither the person of the owner or the time to tending back 51 feet 11 inches; then, back, which they were limited, or relating to the buildings for dining room and kitchen, only character of the use and occupation of the two stories high, but extending 66 feet further back. These back buildings, however, were premises. 5 feet 6 inches narrower than the main build Columbia College v. Thacher, 87 N. Y. 311; Keates v. Lyon, L. R. 4 Ch. 218; Peek v. Mating, leaving that width between the walls and thews, L. R. 3 Eq. 517; Sayers v. Collyer, L. R. 24 Ch. Div. 180; Roper v. Williams, Turn. & R. 18; Page v. Murray, 46 N. J. Eq. 325; Duncan v. Central Pass. R. Co. 85 Ky. 525; Jewell v. Lee, 14 Allen, 145, 92 Am. Dec. 744; Dana v. Wentworth, 111 Mass. 291. Messrs. Julius C. Levy and John G. Johnson, for appellees, in support of petition for rehearing: The construction of a party wall by one owner amounts to a premanent dedication of as a such wall to the use of both owners party wall. It avails nothing to the appellants to appeal to the restriction. By their own act they have done that which amounts to an extinguishment. When they crossed the line and built the only wall permissible, i. e., a solid one, they did an act utterly inconsistent with the maintenance of the restriction. Hoffstot v. Voight, 146 Pa. 636; Evans v. Jayne, 23 Pa. 36 Childs v. Napheys, 112 Pa. 507; Kirby v. Fitzpatrick, 168 Pa. 437; Weigmann v. Jones, 163 Pa. 330; Western Nat. Bank's Appeal, 102 Pa. 183. the lines of the middle lot. He also built a house on the middle lot, the main building being the same as the other two, but with no back building, the kitchen being in the basement, the windows looking south towards Sansom street. On March 24, 1832, Hause conveyed both the eastern and western lots to Lindsay Nicholson and Rebecca H. Willing, for the consideration of $19,000 for each lot. In the deeds was this condition: "Under the condition, nevertheless, that no building or part of a building, other than steps and railings, cellar doors, door frames, window shutters, eaves, and cornices, shall hereafter be built or erected on the said hereby-granted lot And the said William of ground within 5 feet of the south line of the said Chestnut street. Hause, for himself, his heirs, executors, administrators, and assigns, doth hereby covenant, promise, and agree to and with the said Lindsay Nicholson, his heirs and assigns, that the house on the lot of ground adjoining to the west of the hereby granted lot, now belonging to the said William Hause, shall be forever hereafter restricted from having any building or part of a building attached to the said mesThe suage thereon erected of a greater height than 10 feet from the surface of the yard.' numbers of these two lots are 1,206 and 1,210. The title to 1,206, by regular conveyances, all duly recorded, and embodying the condition, in 1888 became vested in this plaintiff, and in 1888 that of 1,210 became vested in George Allen for the consideration of $125,000. On November 10, 1832, Hause for the consideration of $16,000, conveyed the middle lot, 1,208, to one Stewart, under whom defendants claim. In that deed, after mentioning that the lot is bounded east by 1,206 and west by 1,210, is inserted the following condition: "Under the condition, nevertheless, that no building, other than steps and railings, cellar doors and door frames, window shutters, eaves, and cornices, shall hereafter be built or erected on the said hereby granted lot of ground within 5 feet of The acts of the appellants in the construction the south line of the said Chestnut street; and The voluntary act of each of the appellants in permanently obstructing the easement extinguished the same. Moore v. Rawson, 3 Barn. & C. 332; Corning v. Gould, 16 Wend. 539; Taylor v. Hampton, 4 McCord, L. 96, 17 Am. Dec. 710; Washb. Easem, new ed. *559; Innes, Easem. 85; Dyer v. Sanford, Met. 395, 43 Am. Dec. 399; Matts v. Hawkins, 5 Taunt. 20. The erection by Allen of a party wall to the full depth of his lot notwithstanding the fact that there are some openings therein in the southern part entitles the appellees to the use of such party wall to any height. The act of each of the appellants in erecting solid party walls, even though they did not extend the whole depth of the lot, extinguishes the restriction, which is invalid if not enforceable to its full extent. |