19 N.J. Eq. 420 | New York Court of Chancery | 1869
John Snover died in the year 1865, seized of a number of houses and lots in the village of-Blairstown, in the county of Warren. The house and lot belonging to the complainant, known as the hotel lot, and the house and lot belonging to the defendant, which adjoins the hotel lot on the east, were parts of his estate. On an application for partition among his heirs, in the Orphans’ Court of the county, the court directed the property to be sold by the commissioners appointed to make partition. The commissioners, at a public sale, in November, 1865, sold the hotel lot to Joseph Snover, and the lot of the defendant to him and one Lauterman. The
The defendant was erecting, and about to finish an addition to the building on his lot, which extends beyond, and when finished will close up two of the windows in the kitchen of the hotel, and for that purpose has cut away the eaves of the roof over the kitchen which projected upon his lot.
The defendant admits that in the deed from the commissioners through which he claims, there is the clause above set forth. In this case, it cannot be considered whether the commissioners had the right to insert that clause in the deed, or whether the defendant is not entitled to have the deed reformed on account of the misrepresentation of the commissioners that it had been erased from the deed. Such relief could only be had in a proper suit for that purpose. It is clear from the answer, that the clause is in the deed as delivered and recorded; and a crooked line drawn over the words, and not across them, can be of no effect, as the words remain uncanceled and not erased, and the note in the attestation clause is warranted by the other erasures and inteilineations on the page referred to.
There can be no doubt but that commissioners like these have the power, if it will, in their judgment, be a benefit to the sale of property, to annex to one part an easement in another part of the property to be sold, and to sell and convey such other part subject to the servitude of such easement. The defendant and Lauterman might not perhaps, in this case, have been bound to accept a deed with a clause
As to the stairway in the alley, this clause would seem to give the right to erect it, even if without such clause the defendant could not erect it. This deed was delivered at the same time as the deed to Joseph Snover, and they would seem to be one transaction; and the contents of this may have been known to Joseph Snover. The presumption is, that they were known to him. If the deed to him was given after this deed, or with knowledge of its contents, he and the complainant would be bound by this provision. For this reason, and because the defendant in his answer denies that he intends to erect in the alley any stairs that will obstruct the passage of light or air to the building of the complainant, and also because the injury is not irreparable, and could easily be removed by abating the stairs if it did illegally obstruct the light and ventilation, the injunction as to erecting a stairway in the alley must be dissolved. There will be no costs allowed to either party.