88 Mo. 524 | Mo. | 1885
I. Under the authority of the case of Sharp v. Cheatham, ante, 498, the agreement made between Smith & Keating, and August F. Korfhage whereby they bound themselves, their heirs and vendees, in relation to a party wall between their respective lots 282 and 281, in block 29, “Old Town,” Kansas City, must be regarded as binding and creating an equitable charge, easement and servitude on the lot 281 then owned by August F. Korfhage. And this agreement having been duly executed, acknowledged and put to record and Smith & Keating having built on their lot, any one purchasing afterward from August F. Korfhage would talc with notice and subject to the equities created by such agreement. And Keating having bought Smith’s inter r est in the agreement and in lot 281, and received a deed therefor, would be 'the successor to whatever rights and equities Smith possessed in the premises. The claim of defendants that the agreement should be held invalid or the mere personal one of August F. Korfhage, incapable of being enforced in equity, must, on the authority of the case cited, be ruled adversely to such claim.
II. As to the character of the party wall built by Smith & Keating, as to whether it complied with the agreement, it suffices to say that there was evidence which showed to the satisfaction of the trial court that August F. Korfhage, while he continued owner of lot 281, acquiesced in the construction of the party wall, and such acquiescence estopped him and any one claiming under him from now objecting to the method or materials whereby and wherewith such wall was constructed ; and this acquiescence on his part in a change in the materials used for constructing the stone foundation of the wall, had the effect to alter the agreement in that particular and to render the agreement, as thus changed, binding on the defendant, Caroline Korfhage, who, hav
III. Mrs. Korfhage, having a separate estate in the lot in question and there being sufficient evidence to satisfy the trial court that her husband acted as her agent in the matters connected with the arbitration proceedings, she must be regarded respecting her separate property as a femme sole and his acts as her acts.
IV. As there was evidence which satisfied the trial court that August F. Korfhage when acting as the agent of his wife refused to go on with the arbitration proceedings after they had been instituted and the arbitrators had failed to agree, this was sufficient to authorize equitable interposition to ascertain the cost of the wall. Indeedj under the ruling in Black v. Rogers, 75 Mo. 441, the agreement made between the original parties and the completion of the party wall was the principal thing; the computation of the cost of that wall was merely auxiliary thereto and inasmuch, owing to the completion of the party wall, as the parties could not be restored to their statu quo, it was competent for a court of equity by any appropriate procedure to ascertain such cost and otherwise adjust and enforce the equities of the case.
V. The judgment in this cause is not obnoxious to the objection that it is a judgment against a married woman. The judgment establishes no personal liability against Mrs. Korfhage. It is special and against the property burdened with the equitable charge, and for the enforcement thereof. Hoskinson v. Adkins, 77 Mo. 573.
Finding no error in the record, judgment affirmed.
