90 Iowa 205 | Iowa | 1894
In the year 1874, Henry Price and Boyer & Barnes owned adjoining lots in the city of Oskaloosa. Each was one hundred and twenty feet in length from east to west; that of Price was twenty feet wide, and that of Boyer & Barnes was twenty-eight feet wide, and north of that of Price. The owners
“This agreement,- made and entered into by and between Boyer & Barnes of the first part, and Henry Price of the second part, witnesseth: That party of the first part agrees to construct a stairway on south ■side of their lot, on the west side of the public square, in the city of Oskaloosa and county of Mahaska, Iowa, at least fifty-two inches in the clear, with hall on second floor running to rear end of the building, with door 'in said rear end of hall. Second party, for the use of .said hall and stairway jointly with party of first part, agrees on his part to build the middle wall of good •stone foundation, and thirteen-inch brick wall two stories high, for eighty feet, and twenty feet more one story high, said wall to be built half on each party’s .ground, and to be owned jointly by said parties; and party of second part further agrees to pay half the cost 'of tin roofing over the said hall, and to put good iron doors on each opening that he may make in said partition wall. It is further agreed that, after the completion of said stairway and hall, each party shall pay half the expense of keeping said stairway and hall in repair.
“Dated, Oskaloosa, Iowa, April 14,1874.
“Bolee & Babnes.
“Henby Pbioe.
“0. G-. Bybam, Recorder.”
A building was erected on each lot, and Price complied with the requirements of the agreement on his part, paying all the cost of the party wall for eighty feet in length, and for one half of an additional twenty feet. The buildings erected were two stories in height, and one hundred feet in length. A front stairway was constructed by Boyer & Barnes, and a hallway was -extended from it westward to the end of their building.
I. The appellee has filed a motion asking that the appeal be dismissed on the ground that, since it was taken, the plaintiff has sold his building and interest in the hall to the Oskaloosa Savings Bank. The bank has appeared in this court, and asked that the appeal be prosecuted to a final decree. It is shown that plaintiff has agreed to sell the property described to the bank, but it has not been conveyed; ten thousand dollars of the purchase price remain unpaid, and the title is retained by the plaintiff as security for the amount due him. It is to his interest to preserve the property from loss, and to protect the appurtenances belonging to it. He may do that by prosecuting to a conclusion the action he commenced for that purpose when he was the unqualified owner of the property. Section 3212 of the Code, relied upon by the appellee, does not apply to this case, for the reasons stated. Section 2561 of the Code provides that “no action shall abate by the transfer of any interest therein during its pendency.” There has been a change of interest in this case since it was commenced, but not a transfer of all interest. Enough is retained to support the action to a final termination. The motion to dismiss is overruled..
II. The appellant contends that the decree rendered by the district court is not in harmony with the opinion of this court announced on the former appeal. That was rendered on the facts as- then shown to us, but the right to a permanent injunction, on a final hearing was not adjudicated. We are now required to determine the rights of plaintiff’ on the facts as shown by the evidence submitted on that hearing. When