Noojin v. Cason

SHARPE, J. — The defense presented by plea 2 does not fall Avithin the principle Avhich denies to a vendee of [460] land holding its possession under the purchase the right to defend against a suit for the purchase money by showing that the contract of sale was induced by misrepresentations as to title. The alleged misrepresentation Avas in effect that the title to the lot sold was attended Avith an easement in the adjoining Avail which would pass to the defendant by virtue of his succession to' that title. The title to the lot itself was not affected by the existence or non-existence of an easement in the adjoining Avail so that the alleged misrepresentations were not made in respect of that title and the fact that defendant holds possession of the lot does not preclude him from setting up the non-existence of the easement as a defense pro'tanto. The plea Avas not subject to the demurrer interposed to it. Though such an easement Avould have been a property right distinct from the lot itself, and Avliile it could not have been conveyed by parol agreement, yet it was possible for it to have originated in such way as to pass to a purchaser of the lot by force of a deed containing no other description of the property sold than that of the lot itself. An easement may be created by exception or reservation from a grant of land or by a covenant running with the land.' — Gilmer v. Mobile &c. R’y Co., 79 Ala. 569; Webb v. Robbins, 77 Ala. 176; Ladd v. Boston, 151 Mass. 585. And an easement when once created by a coArenant running with the land may pass to those subsequently taking title to the land in privity Avith the grantee merely by the sale and convéyance of the land itself without mention of the easement. — Hogan v. Barry, 148 Mass. ,538; Norcross v. James, 140 Mass. 188; Brown v. Staples, 28 Me. 497. The statute of frauds is therefore inapplicable to such a transfer of an easement if there has been due compliance in respect to the land itself. The title to the iot was not affected by the easement so that the alleged representation Avas not respecting the title, but had reference to a property right which might well have entered into the consideration of the sale. The effect of the plea is to show a deficiency, not of title, but of property the subject of the sale, in diininuation of the plaintiff’s claim. The case is analogous to those wherein a deficiency in the quantity [461] of the land itself ivas pleaded and allowed in defense of suits for purchase money and is governed by like principles. On the appeal of Ellen H. and D. E. Cason the judgment overruling the demurrer .to the plea will be affirmed. On the appeal of J. T. Noojin the judgment overruling the demurrer to the replication will be- reversed and the cause will be remanded.