114 Mass. 373 | Mass. | 1874
We find but two questions raised by this bill of exceptions, or by the argument which has been submitted to us.
First. The defendants, apparently conceding or not denying the superior title by which the plaintiff was evicted of two undivided thirds of the land, contend that as they were ready and desirous to undertake the defence of the writ of entry brought against the plaintiff, and offered to take the charge of conducting.: that defence and “ to warrant and defend, and save the plaintiff from all loss, cost and damage, and were not allowed to do so by the plaintiff, there was no such breach of the covenant to warrant and defend as made the defendants liable for damages in this action.”
The plaintiff was not bound to permit the defendants to take the control of the defence to the writ of entry. He might do so, and then they would be concluded by the judgment therein; and that judgment would become the foundation of subsequent proceedings to recover over against them on their warranty. If he preferred to conduct his own defence, he was at liberty to- do so without prejudicing his right to recover over. But in that case he could not use the judgment recovered against himself as the foundation of subsequent proceedings in his own favor. It would not be competent evidence, against these defendants, to istablish the fact that his eviction was by a title superior to that ■f his grantors. Their offer to assume the defence of that suit,
The court rightly refused the ruling asked for upon this point; and the ruling given was sufficiently favorable to the defendants, in that aspect of the case.
Second. There was attached to the premises a privilege to use the wall of an adjoining building for the support of buildings that might be erected thereon. This privilege was said to be worth from $300 to $500. The defendants asked the court to rule “ that as the plaintiff retained one undivided third part of the premises, the privilege of building upon the wall could not be considered as an element of damage.” It is suggested in argument that upon partition the portion of the premises next to said wall might be set to the plaintiff; and thus he might secure this entire right to himself in severalty as annexed to his third part. But the right belongs to the entire premises, and constitutes a .part of its value. It would be taken into account in making ■valuations for the purpose of partition; and, if the portion next ; to the wall should be set to the plaintiff for his share, it would .-.be reduced in extent in precise proportion as it would be increased in value by the advantage from the enjoyment of this ¡privilege. The ruling asked for was rightly refused, and the instructions given to the jury on that point were correct.
Exceptions overruled.
