3 Rawle 492 | Pa. | 1827
The opinion of the court was delivered by
The plaintiff here, was plaintiffbelow, and brought this ejectment to recover part of lots Nos. 177 and 158, in the city of Pittsburg.
The facts given in evidence, and not disputed, made the following case: — William Hamilton in. 1817, was the owner of lots Nos. 176, 177, 158 and 159, in the city of Pittsburg. The four lots adjoined, and formed together a parallelogram. The two first fronted on Front street, and the two last on Water street. Nos. 176 and 159 were exactly
Anderson on the 20th of February, 1818, filed his lien as hereinafter recited, and along with it, the articles of agreement before mentioned, with Hamilton, and his account. The articles referred to a plan, but no plan was filed. In fact, that plan is agreed to have been abandoned by both parties.
Soon after this lien was filed, MClurg obtained a judgment against Hamilton; Beldane another judgment, and Ansheets & Rham another. Anderson purchased these three which were next in priority to his mechanic’s lien. After these, many other judgments were obtained by other creditors of Hamilton, who became totally insolvent, and died in 1820.
Anderson sued a scire facias on his lien as a mechanic, and obtained judgment and issued execution, on which he made a levy in these words, — “Levied on all the right, title and interest of William Hamilton to a large brick ware-house fronting on Water street, joining John Kelly, and occnpying a part of lots Nos. 176, 177, 158 and 159, subject to a ground-rent of two hundred dollars.” A levy was a Iso made on M'Clurg's (now become Anderson's) judgment on the four lots, in the words hereinafter recited.—
It was proved by Mr. Neville, then sheriff, that both these levies were made under the direction, and agreeably to the direction of Anderson and his attorney.
No. 83 to August, 1822, was a venditioni exponas on the mechanic’s lien judgment; the advertisement conformed to the levy, and on it a sale was made on the 6th of June, 1822, to Anderson, and a deed acknowledged 15th of August, 1822.
No. 85 to August, 1822, was a venditioni exponas on Anderson's judgment in the name of M‘Clurg; the advertisement conformed to the levy, and on it a sale was made on the 10th of June, 1822, of lot No. 159, to Anderson, for three hundred and fifty dollars; and of lot
Soon after Anderson claimed the whole of lots Nos. 177 and 158, as well as Nos. 176 and 159, by virtue of the sale to himself on the mechanic’s lien. McDonald brought an ejectment, and the jury found a verdict in these words ;“We find for the plaintiff the western part of lots Nos. 177 and 158, bounded by Water street and by lot No. 178 and lot No. 157 and Frontstreet, up to a four feet wide alley running through from Water street to Front street as marked on the diagram filed; the alley to be forever in common between the parties ; with six cents damages, and six cents costs, and for the residue we find for the defendants.”
This verdict and the charge of the late President of the Common Pleas, which was repeated by the President on the present trial, are thus necessarily noticed here. Judgment was entered on that verdict. The present suit is brought to recover the whole of the alley and eleven feet on the eastern side of it, being part of lot No. 158, which by the former verdict and judgment, were given to Anderson.
Many points were raised and discussed during the argument, not necessary to be decided, a.nd which therefore we do not decide. The acts of assembly under which this question arises, have been extended to many parts of the state. Many questions have arisen, and more will arise. When a point arises directly in a cause, it may be expected it will be more fully considered by the counsel, than when it is started incidentally and is not material to the cause trying.
The doctrine of what passes as an appurtenant, and of a way from necessity, and the effect of a sale by one, or in the presence of and for the benefit of one who claims a right in the property sold and conceals such claim from the purchaser, must, toa certain extent,be considered. Strictly speaking, land cannot be appurtenant to land, or to a messuage, of which land, being the substratum, is the principal part in the consideration of lawn But so long ago as the time of Plowden, it was decided that the intention’of the parties, and the meaning in which words were used, should gov'ern, and that the expression “ appertaining to the messuage” shall be taken in the sense
How far the words of the description in the lien filed can go, in affecting property, contiguous to, and not covered by the building, or whether the law, and it only, must decide the extent of lien where words would embrace more than the law gives, we do not now decide, or lay down as a general rule to extend to all possible cases, but as the lien is given for the security of the mechanic, and it is ordered to be filed as notice of the claim to others, it would seem that the lien cannot extend beyond the description of the property in the paper filed; for as to property not within the description, it gives no notice. There was a plan referred to in the articles, which we have seen at the argument, but which was not filed with the lien. In the similar case of a mortgage, which described the property in words and referred to a plan, which plan embraced property not comprised by the words, and which plan was not recorded with the mortgage, the Supreme Court of the United States, have decided that only the lands described in the words of the mortgage pass. Those additional lots appearing only in the plan do not pass. 7 Cranch, 48.
The plan then referred to in the articles and the roads, passages &c. which it exhibited, are out of the case. The lien mehtions a lot and a building; it is confined to that lot and that building — and at farthest if there was an alley laid out and used from the back building along the end of the front house, to a right of passage along thaalley.
A right of way from necessity only extends to a single way. That a person claiming a way from necessity has already one way, is a good plea, and bars the plaintiff 3 Com. Dig. Chemin, D. 4.
There cannot then be a way from this back building to Front street and another to Water street.
In my opinion, the fact that Anderson owns No. 159, which extends from Water street, to the back building, would of itself preclude him from any claim to even a right of way over the lot of another on that side.
Admitting however, what in my mind is inadmissible, that Anderson’s lien might have entitled him to some parts of the adjoining lots, he has, if the witnesses are believed, precluded himself from all claim to them by his conduct. I know of no principle better settled, or the justice of which is more obvious, than that if at the time a sale is going on any person represents the right or the extent of the right to be in acertain way against him, the right shall be as represented — If then the jury shall believe, that Anderson on his executions on the judgments, directed the levy on lots No. 177, 158, 159, 176; that he was present at the sale; refused to permit a postponement of the sale;
My own opinion is, that on his claim as filed, he had a lien only on lot No. 176, covered by the building, together with the building and such part of the other lots as was covered by it; that having a way, though an inconvenient one, through the front house to the back building, he had no right from necessity to any other way to it; that when he himself sold the adjoining lots, if any of them were essential to the more beneficial use of the building, he ought to have bought such; that having directed the sale of them and received the price he cannot now claim them or any part of them,' and that such direction ought to have been given to the jury.
Judgment reversed and a venire facias de novo awarded.