47 N.J. Eq. 31 | New York Court of Chancery | 1890
This case is before the court on final hearing on bill without an answer. The facts, bearing on the question in dispute, have been stated by the complainant in his bill with such accuracy and fairness as to render an answer, in the judgment of the defendant, unnecessary, and she has, in consequence, proceeded to final hearing on the bill alone.
*33 “ That the hall extending back twenty-eight feet, and the stair-way leading into the dwelling and upper part of the premises hereby conveyed and the part now owned by the said Stephen Ford, lying southerly of said last-described premises, shall be kept open and unobstructed for the use of said parties and their families, tenants and servants; and that said Ford, his family, tenants, servants and legal representatives shall have the right to use the stair-way, passage and cross-hall to and from any part of the premises owned by him, adjoining the premises hereby conveyed; and with the further reservation that the partitions in the third story of the building on the premises hereby conveyed shall remain as they are at this time, unless said building should be destroyed.”
Just six months after the sale by Ford to Garrabrant, namely, on the 28th day of April, 1868, Ford and Garrabrant procured a new lease to be made to them jointly for a term of twenty years from May 1st, 1868. The new lease gave them substantially the same right to renew for an additional term of twenty years and to remove the building that the first lease did. Though the new lease was made to Ford and Garrabrant jointly, each subsequently occupied in severalty that part of the demised premises to which he was entitled. Ford, in September, 1869, consented, in writing, that Garrabrant might reduce the width of the hall-way from six to three feet, but the writing declared that it was expressly stipulated, that all the other conditions and reservations contained in the assignment made by Ford to Garrabrant, in October, 1867, should remain in force. Ford, on the 3d day of January, 1870, sold and assigned that part of the building which he owned, together with his right of passage through the other part, and also that part-of the demised premises which he occupied, to the complainant. He also transferred to the complainant his right to a renewal of the lease for an additional term of twenty years. The lessor, in April, 1888, granted a new lease to the complainant for a term of twenty years from May 1st, 1888, of that part of the demised premises which the complainant then occupied. Garrabrant’s right in the demised premises and to the building was sold, in December, 1886, under a judgment recovered against him at law, and purchased by his wife. He and his wife, in February, 1888, by writing, relinquished their right to a renewal of the lease and
From the foregoing statement, it appears, that the defendant derived her title to the building from an entirely different source from that from which she acquired her right to the demised premises. Whatever right she has to the building, she acquired from Mrs. Garrabrant. Her lessor had no right to the building; the lease, therefore, made by her lessor to her gave her none. And now we come to what I regard as the test question of the case, and that question is, did the right reserved by Ford, in his sale to Garrabrant, have the effect to create in favor of that part of the building which he retained, and impose upon that part of the building which he sold, a license or right in the nature of an easement which the parties meant should attach itself to the building and pass with the building to all subsequent owners ?
But conceding, as I think we must, that both of the defendant’s legal propositions are sound, still I do not think it follows that the complainant must be refused the relief he asks. Although the building must, as a matter of law, be classified as a chattel, •still the court, in dealing with it as a thing of property, cannot fail to see, in view of the purposes for which it was erected, and
The language of the reservation, as well as the nature of the-right which it created, shows that the parties meant that the right should be considered attached to the building and pass-with the building to its successive owners. The building, it will be remembered, was originally constructed so as to make one-part of it tributary to the other, and this was its condition and-i
Garrabrant’s conduct, considered in connection with the language of the reservation, would seem to leave no doubt that he ■understood that he took title, to that part of the building which he purchased, fettered with the right, which the complainant •claims, and that such right should continue in force so long as -his part of the building should endure. This being the basis
There is a single other question to be decided: Did the defendant take title with notice of the complainant’s right ? The case is one in which the rule laid down by Lord Cottenham in Tulk v. Moxhay, 2 Phil. 772, and followed in many subsequent cases, should, I think, be applied. That rule is, that if an equity is attached to property by its owner, no one purchasing with notice of that equity can stand in a different situation from the owner. Although it must be admitted that this rule was originally applied to real estate, and has not as yet been given a wider application, yet no reason of justice or policy was mentioned on the argument, and «none has suggested itself to my mind, which renders it inapplicable to personalty of the kind under consideration ; on the contrary, it would seem to be quite clear, that unless it is applied to property of the latter kind, valuable-rights, for which a full consideration has been paid, must be lost. It requires no argument to show that the defendant took title-with notice of the complainant’s right. The mechanical arrangement of the building was sufficient of itself to render her chargeable with full information on that subject. But it should be said, in addition, that she stands, as to the building, in the right-of Garrabrant’s title derived from Ford. Unless she was intentionally careless, she inspected, prior to her purchase, the instruments by which Ford made title to Garrabrant,. and which created
The complainant, in my judgment, is entitled to the protection he asks.