Hammond v. Abbott

Barker, J. 1. The tenant’s first exception is to the refusal to give the first eleven rulings requested by him. All of them were rightly refused. The first and second were in effect that a verdict should be ordered for the tenant, and this could not be done because upon the evidence the case was for the jury. The lease of July 29, 1878, and the assignment of the same to the demandant, were both executed on the same day, and might be found to be parts of one transaction, in which the demand-ant’s husband released to her, through Brickett as a mere conduit, the condition subject to which she held the premises under her husband’s former deed. Such a release between the parties to a condition is valid. See Com. Dig., Condition (Q) 135. As under the lease the demandant might be found to have acquired a right to the leased premises during her own life after her remarriage, conditional upon such remarriage, the third request was rightly refused. The requests numbered from four to nine inclusive all turn upon the contention that no land under any building but the dwelling-house occupied by Mr. Hammond as his hqme, and no building on such land, could pass by the deed of 1877, or by the lease of 1878. But the language, “ Together with land under and adjoining said house as now used with it,” is a description which may include adjoining land covered with buildings, as well as adjoining vacant land, the description including and carrying all land [539] adjoining the dwelling-house which was then used with that house. The question is not whether land covered by a building can pass as a mere appurtenance to a residence. The lands marked O, E, Gr, H, and L upon the plan were all lands adjoining the residence lot when the deed and lease were made, and upon the evidence the question whether they were lands then used with the dwelling-house was a question of fact for the jury, and the tenth and eleventh rulings were rightly refused. The passageway in the rear of Hammond Block is the same land designated in the tenth request as marked 0 on the plan. Whether the demandant had in it any right except a right of way to and from the house depended upon whether it was included in the description of the deed and lease, and as this was a question of fact, the twelfth request was properly refused. The same considerations dispose of the seventeenth request, relating to the same passageway. The sixteenth request attempts to read into the language of the conveyances restrictive words which would limit the description to land used as a yard with the house. As there is no such restrictive language in the deed, this request was properly refused. The rule that the actual use at the time of the conveyances was the test, disposes also of the contention on which the eighteenth request was founded, that neither instrument conveyed any land or buildings which were then used or designed to be used by tenants. 2. The thirteenth, fourteenth, and fifteenth requests relate to the question whether the demandant was prevented from recovering any part of the demanded premises by an election to take less land than was conveyed to her, or by an estoppel by reason of her conduct after her husband’s death. The evidence was not such as to justify the giving of any of these rulings, and they were properly refused. Nor do we find any error in the rulings given upon this part of the case. There was no evidence that the tenant had changed his condition in consequence of any waiver or election, or other act or conduct of the demandant. On the other hand, the inference might perhaps be drawn that he bought for the purpose of testing the demandant’s ownership. Nor was there any evidence that justified a finding that [540] the demandant had elected not to accept land conveyed to her. Taken most strongly against her, the demandant’s acts and conduct amounted to no more than a practical construction of conveyances under which she claimed, and this aspect of the case was properly left to the jury. 3. The evidence of a change in the business condition of that part of the city in the immediate vicinity of the demanded premises was immaterial, and rightly excluded. It did not bear upon the question of the actual use of the land adjoining the house at the time of the conveyances. 4. The evidence as to the real estate for which Andrew W. Hammond was assessed in 1878, and for which his estate was assessed in 1879, was properly excluded. The facts that after his death the demandant was not, and that some other person was, assessed for land which she demands by her writ, were res inter alios, and irrelevant. 5. The exception to the refusal to set the verdict aside and to order a new trial must be overruled, as of course. It raised no new question. Exceptions overruled.