Benham v. Minor

Carpenter, J. This case comes up on a motion in error. The motion does not present any question of law very clearly, and in that respect is open to criticism; but we can gather from the whole record, that the court below was called upon to construe a certain clause in a deed, under which the plaintiffs claim, and that the construction put upon it was adverse to the claim of the plaintiffs. This question of construction is the only one we can properly consider. The clause referred to is as follows: “ and that the same is free from all incumbrances whatsoever, except that said presbyterian society have a right to have the said horse-shed stand where it now does during the life thereof.” The defendants are the legal owners of a portion of said horse-shed, and the plaintiffs own the land on which the shed stands, subject to such rights as the owners of the shed have under the exception quoted above. The defendants entered upon the land and repaired the shed; and that was the alleged trespass. The plaintiffs claim that the defendants had no right under the exception to repair the shed, but that it must stand as it was when the deed was given in 1825, without repairs, and when it could be no longer used it would cease to be an incumbrance. The defendants denied this claim, and insisted that they had a right to make ordinary repairs, and thus prolong its existence in suitable condition for use. The court below sustained another claim made by the plaintiffs, and that was that the words, “ the life thereof,” referred to the shed, and not to the presbyterian society. "We [255] have no occasion therefore to review that question, but assuming that it was correctly decided, we will consider whether the court was right in overruling the other claim. The language used is the language of the grantor, in naming an incumbrance outstanding in a third party, as an exception in the clause warranting the premises to be- free from incumbrances. This language must have its ordinary meaning applied to a matter of this kind, as we discover nothing in the deed, or the circumstances of the case, to qualify that meaning, or show that it was used in a different sense. What then is meant by the life of a shed ? We suppose that it must refer to the continuance or existence of the shed as such, and that the clause in the deed is equivalent to saying, that the shed, so long as it can be reasonably used for the purpose for which it was erected, may continue to stand on the land conveyed. The universal practice among men of ordinary prudence is to keep in suitable repair all such buildings, and thus prolong their existence and usefulness. To do otherwise would be waste and improvidence. The fair inference then is, that the parties to this deed must have contemplated and understood that the owners of this shed would treat and use it precisely as men ordinarily treat and use buildings of that description; and that would include reasonable repairs from time to time as the same were needed. The facts found by the court show, “ that said shed was in life and being and had an existence as a horse-shed, and was used as such by the defendants at the time of the alleged trespass; that the repairs made by the defendants, which constituted the trespass complained of in this action, were not a rebuilding of the shed, and did not destroy its life.” Upon these faets we áre satisfied that the ruling of the court below was right, and that there was no error in the judgment. In this opinion the other judges concurred; except Seymour, J., who having been consulted in the case when at the bar did not sit.