stance of evidence, more or less strong, as the case may be, tending to show a parol agreement for such easement. If this were the deed of the defendant it could not be contradicted or altered by extraneous evidence; it would have to speak for itself, and all that this court could do would be to enforce its terms. This is the force that I refuse to give to it, looking upon it as simply evidence of a character susceptible of explanation or alteration by the other facts in the case. If there were no other proof on this subject. except the statement of the bargain in the grantor's deed, I should treat it as was done in the case cited from the New York reports, as full proof of an agreement in the terms of such statement, and, as the transaction has in part been executed, should favor its enforcement. But the matter does not stand on such statement alone; there is other testimony on the subject that has satisfied me that the easement, as claimed by the complainant, was not a part of the bargain. The defendant did not agree to grant the easement to the extent set up in the complainant's bill. Taking this view of the testimony, I will vote, on that ground, to affirm this decree. DEPUE, J., delivered a dissenting opinion. A covenant or stipulation inserted in a deed-poll binds the grantee, his heirs and assigns, where such stipulation directly relates to the premises conveyed : Stines v. Dorman, 25 Ohio St. 580; Clark v. Martin, 49 Penn. St. 289; Seymour v. McDonald, 4 Sandf. Ch. 502; Atlantic Dock Co. v. Leavitt, 50 Barb. 135, 54 N. Y. 35; Anon., 2 Abb. N. C. 56; Kimpton v. Walker, 9 Vt. 191; and also where it relates to the premises conveyed and the adjoining premises, as a fence: Kellogg v. Robinson, 6 Vt. 276; Burbank v. Pillsbury, 48 N. H. 475; Harriman v. Park, 55 Id. 471; Newell v. Hill, 2 Met. (Mass.) 180; Bronson v. Coffin, 108 Mass. 175; 118 Id. 156; Blain v. Taylor, 19 Abb. Pr. 228; Hazlett v. Sinclair, 76 Ind. 488; Easter v. Little Miami Railroad Co., 14 Ohio St. 48; Boyle v. Tamlyn, 6 B. & C. 329; Walsh v. Barton, 24 Ohio St. 28; Duffy v. N. Y. & H. Rairoad Co., 2 Hilt., 496. But see Emerson v. Simpson, 43 N. H. 475; Parish v. Whitney, 3 Gray 516; or party wall, Maine v. Cumston, 98 Mass. 317; Burlock v. Peck, 2 Duer 90; but see Scott v. McMillan, 76 N. Y. 141; Bloch v. Isham, 28 Ind. 37. Unless building restrictions, &c., appear to have been inserted for the benefit of adjacent lands, they are merely personal, and do not run with the land: Skinner v. Shepard, 130 Mass. 180; Pierce v. Keator, 9 Hun 532, 70 N. Y. 419; Goddard on Eas. (Bennet's ed.) 367, note; Wagner v. Hanna, 38 Cal. 111; Keates v. Lyon, L. R., 4 Ch. App. 218; Renals v. Cowlishaw, L. R., 9 Ch. Div. 125; 11 Id. 866; Thurston v. Minke, 32 Md. 487; see Peck v. Conway, 119 Mass. 546; Herrick v. Marshall, 66 Me. 435; Badger v. Boardman, 16 Gray 559. In Athey v. McHenry, 6 B. Mon. 50, A. was the owner of a house adjoining on the north a vacant lot thirty feet wide and two hundred feet deep. The house projected slightly over the line of the vacant lot, and had a door and several windows opening thereon. M. had contracted to buy the vacant lot, and also another one beyond and adjoining it, but agreed, through his agent, that the owner of the thirty feet might sell ten fect thereof to A., next to A.'s lot, on condition, as alleged," that it was to be forever left open and not further built upon," in order that "it should remain forever an open space between A.'s house and the house which M. was about to build, to afford air and light to both." The deed was executed and delivered, but contained no restrictions whatevera fact that M. did not discover until some time afterwards. M. built his house adjoining the south line of the ten-feet strip, and A. afterwards built a coalhouse on the back part of the strip, and also nailed up boards near and in front of M.'s windows on the north side of M.'s house, so as to cover them and exclude the light and air therefrom. M. filed a bill to correct A.'s deed by inserting the above-quoted stipulation, and to compel A. to remove the coal-house, and also the boards which darkened the windows, and to prevent any further erections on said strip. Held, that the circumstances of the transfer of the strip, the relative positions of the parties, and their motives and acts before and after the strip was sold, could be inquired into; and the deed was ordered to be reformed so as to contain a clause preventing A.'s building on the strip only as far back as the houses stood, and requiring him to remove the boards, but not the coal-house. In Woodruff v. Trenton Water Power Co., 2 Stock. 489, a corporation stipulated in a deed of lands to them for a raceway, that they would erect and maintain a bridge across their raceway, and also a landing-place on the Delaware river on other lands of the grantor, and VOL. XXXI.-94 all necessary fences, and that the grantor might use the raceway to water his cattle and to take ice therefrom, the premises to revert in case of breach. Held, that the covenants ran with the land and were enforceable by the heir of the grantor against the successors of the grantees, but that equity could not compel specific performance because the complainant could, by the terms of the deed, enforce the forfeiture of the estate at pleasure See Rgan v. Lockhart, 1 Pug. (N. B.) 127. In Cooke v. Chilcott, L. R., 3 Ch. Div. 694, a purchaser of a piece of land, with a well or spring upon it, covenanted with the vendor, who retained land adjoining to be disposed of for building sites, to erect a pump and reservoir, and to supply water therefrom to all houses built on vendor's other land. Held, a covenant running with the land, and enforceable by the purchaser of one of original vendor's lots against the vendee of the original purchaser. [This case was questioned in Haywood v. Brunswick Build. Soc., L. R., 8 Q. B. D. 403.] In Daniel v. Stepney, L. R., 9 Exch. 185, a power of distress in a demise of mines over 66 any lands in which there shall be, for the time being, any pits or openings by or through which the coal or culm by the said deed demised shall, for the time being, be in course of working by the lessees, their executors, administrators and assigns, was held to authorize, as against the assignees of the lessees, with notice, a distress at pits not included iu the demise, but referred to in it, and then worked by the lessees. In Catt v. Tourle, L. R., 4 Ch. App. 654, the plaintiff sold a piece of land to a society which covenanted with him that he, his heirs and assigns, should have the exclusive right of supplying beer to any public house erected on the land, but the plaintiff entered into no covenant to supply it. Held, that plaintiff could enjoin the defendant, who had purchased part of the land and erected a public house thereon, from supplying such public did, and it remained until 1853. house with his own beer. In Luker v. Dennis, L. R., 7 Ch. Div. 227, a brewer leased a public house to a publican who, in the lease, covenanted for himself, his representatives and assigns, to purchase from the lessor all the beer consumed at that public house, and also at another public house of which the publican held a lease under another landlord. Held, that the latter covenant was binding in equity, upon an assignee of the lease of the second public house, who had notice of the covenant. In Biggar v. Allen, 15 Grant's Ch. 358, the plaintiff claimed under a grantee to whom had been conveyed a lot bordering on a lane leading to the grantor's dwelling. On this lot the original grantee had built a hotel with windows looking out on the lane, under the verbal assurance of the grantor that the lane should not be built upon opposite the adjacent houses. Held, that plaintiff could enjoin the grantor's widow from building on the lane so as to close the windows of his hotel. In Rockford Railroad Co.v. Beckemeire, 72 Ill. 267, the natural and proximate loss (such as inconvenience in shipping grain) to the grantor in a deed-poll, from the grantees' failure to comply with a provision in the deed which required them to erect a depot "upon the section of land" on which the grantor's farm was situated, was held recoverable, but not speculative damages. In Morse v. Copeland, 2 Gray 302, in 1825, the Copelands, still owning other adjacent lands, conveyed their interest in a factory and water privilege to the Easton company, together with the right to flow all their (Copelands') lands as then flowed; and the Easton company conveyed the same to Leach, through whom the plaintiff claims. In 1831, Leach gave the Copelands an oral license to erect a dam on their own land to exclude the water therefrom, which they In 1831, Leach also gave the Copelands an oral license to dig a ditch across his (Leach's) lands (now owned by the plaintiffs) to drain whatever water might accumulate on their land in consequence of having erected their dam. The ditch was dug and continued by them until 1853, when the plaintiffs gave the defendants (the present owners of the Copelands' lands not conveyed to the Easton company) a written notice to discontinue the ditch and to remove the dam, and revoking the license therefor. Held, that he could revoke the license as to the ditch, even after twenty years, but not as to the dam. See Elting v. Clinton Mills Co., 36 Conn. 296; Williamson v. Yingling, 80 Ind. 379; Carr v. Lowry, 27 Penn. St. 257; Goddard on Ease. (Bennet's ed.) 472 et seq.; Junction Railroad Co. v. Sayres, 28 Ind. 318. Wooliscroft v. Norton, 15 Wis. 198, the owners of a dam and several mill sites, conveyed one of those sites to Stevens & Older, by a deed covenanting that the grantees would pay their ratable share of the expenses of keeping in repair the dam and raceway not on their lands. Held, binding on Stevens & Older's grantees. See Spensley v. Valentine, 34 Wis. 154. In McLean v. McKay, L. R., 5 P. C. 327, a grantor conveyed a tract of land leaving a vacant lot belonging to the grantor between the lot on which his own house stood and the lot conveyed. The deed contained a clause that, "by the true intent which was unanimously agreed upon between the parties [the vacant lot] should never be hereafter sold, but left for the common benefit of both parties, their successors," &c. Held, that the grantee's vendee could compel the guardian of the grantor's heir, who represented the deceased grantor, to remove a building erected by him on the vacant lot. Also, Brew v. Van Deman, 6 Heisk. 433; Phanix Ins. Co. v. Con tinental Ins. Co., 14 Abb. Pr. (N. S.) 266; Gay v. Walker, 36 Me. 54; Fuller v. Arms, 45 Vt. 400. In Martin v. Drinan, 128 Mass. 515, an agreement by the grantee in a deedpoll to keep in repair a building on adjoining land of the grantor, was held not to be a covenant, and not enforceable by a subsequent grantee of the adjoining land. In Bishop of Raphoe v. Hawkesworth, 1 Hud. & Br. 606, lands were demised to the defendant by the bishop of R., on condition that if the defendant should grind grain grown on the demised premises, at any mill save the mill belonging to the bishop of R. for the time being, he should pay to the lessor and his successors 5s. for each barrel of grain so ground, as if the same had been due for rent. The mill was not on the demised lands. Held, enforceable by the bishop of R.'s successor against the lessee, as rent. Also, Dunbar v. Jumper, 2 Yeates 74; Wadsworth v. Smith, 11 Me. 278; Adams v. Morse, 51 Id. 497; Bartlett v. Peaslee, 20 N. H. 547; Morse v. Garner, 1 Strobh. 514. In Hodge v. Boothby, 48 Me. 68, a deed from A. to B. reserved to C. "a right to cross said lot, and to take and haul away stone," &c. Held, that B., by accepting his deed, was precluded from questioning C.'s rights in the premises. See Wickham v. Hawker, 7 M. & W. 63; Ives v. Van Auken, 34 Barb. 566; Eysaman v. Eysaman, 24 Hun 430; Rexford v. Marquis, 7 Lans. 249; Maynard v. Maynard, Edw. Ch. 711. JOHN H. STEWART. ABSTRACTS OF RECENT DECISIONS. SUPREME COURT OF THE UNITED STATES.2 SUPREME COURT OF GEORGIA. COURT OF ERRORS AND APPEALS OF MARYLAND. COURT OF CHANCERY OF NEW JERSEY.5 ACCORD AND SATISFACTION. Debtor and Creditor-Contract by Creditor to take less than Sum due-Whether Valid.-Judgment for a specific sum having been obtained by the plaintiff in an action, an agreement in writing was made between the plaintiff and defendant, whereby, in consideration that the defendant would pay part of the sum on the signing of the agreement, and the remainder to the plaintiff or her nominee by equal half-yearly instalments, the plaintiff undertook not to take any pro Selected from late numbers of the Law Reports. 2 Prepared expressly for the American Law Register, from the original opinions filed during Oct. Term 1882. The cases will probably appear in 17 Otto's Reports. 3 From J. H. Lumpkin, Esq., Reporter. The cases will probably appear in 68 or 69 Ga. Reports. 4 From J. Schaaf Stockett, Esq., Reporter; to appear in 60 Md. Reports. 5 From John H. Stewart, Esq., Reporter; to appear in 37 N. J. Equity Reports. ceedings on the judgment. The defendant duly performed all the terms of the agreement on his part. Held, by the Court of Appeal, reversing the decision of the Queen's Bench Division, that the agreement was not binding on the plaintiff, there being no consideration for it, and that therefore the plaintiff was entitled to issue execution for interest on the judgment debt: Beer v. Foakes, L. R., 11 Q. B. Div. ADMIRALTY. Time of Decree against Sureties in Stipulation under Sect. 941 of Rev. Stat. U. S.-While under sect. 941 of the Revised Statutes of the United States, it is within the power of the court to postpone a decree against the sureties in a stipulation executed under its provisions to release a vessel against which process in rem has issued, until the time for appeal by the principal has expired, and then to proceed only on notice; and while such is the practice in some of the circuits, there is nothing in the statute which makes this imperative, and judgment "against both principal and sureties may be recovered at the time of rendering the decree in the principal cause:" In the Matter of Warden et al., S. C. U. S., Oct. Term 1882. Quære, Whether the decree is a lien on the real estate of the stipulators after the appeal: Id. AGENT. Liability of Undisclosed Principal-Demise under Seal.-The rule that an unnamed and unknown principal shall stand liable for the contract of his agent, does not apply to a demise under seal. The relation between the owner of land and those who occupy it, is of a purely legal character; and the fact that a lessee takes a lease for an unnamed principal, but in his own name, will not render the unnamed principal liable for the rent: Borcherling v. Katz, 37 N. J. Eq. APPORTIONMENT. Annuity-When Apportionable.-A. and his wife conveyed their farm to B., the husband of their granddaughter, in consideration of B.'s agreement, secured by B.'s bond and mortgage on the premises, to pay A. an annuity of $250 on the first day of April, for his life, and if A.'s wife survived him, to pay her an annuity of $200 for her life. A.'s wife outlived him, and afterwards died on September 19th 1881. Held, that her annuity, having been evidently given for her support, was apportionable: In re Lackawanna Iron Co., 37 N. J. Eq. ASSIGNMENT. Contract containing Provisions as to Forfeiture.-A provision in a contract, that if the contractor fails to pay for labor done or materials furnished in the performance of the contract, the other contracting parties may withhold the moneys earned under the contract, and apply them to the payment of such debts, does not deprive the contractor of his right of alienation, and his assignees, notwithstanding such a provision, will be entitled to the moneys earned under the contract in the order in which they acquired title to them: Shannon v. The Mayor and Common Council of Hoboken, 37 N. J. Eq. BILL OF LADING. See SHIPPING. |