Schmisseur v. Penn

Me. Justice Phillips. Appellee filed a bill to foreclose a mortgage made by appellant to secure a note given as part consideration for the purchase of the lands in the mortgage described. The entire amount secured was paid, except about §500, with interest thereon. The lands described in the mortgage were purchased by appellant from appellee, and the deed conveying the same was of the statutoiy form and to be deemed as a covenant against incumbrances, and was made on the 14th of February, 1885. At the September term, 1887, a decree was entered in a certain cause in which one Needles filed a bill against the appellant and others enjoining her from obstructing a certain way described, and further finding that the road had been openly, notoriously, continuously and uninterruptedly used by the said Needles, her ancestors and grantors, for more than thirty years, and enjoining the defendants from interfering with the use and enjoyment of said road by said Needles. To the bill for foreclosure the defendant set up as a defense that the land for which the note secured by the mortgage was executed was part consideration for the purchase of the lands by her from the complainant, and that the complainant covenanted against any incumbrance on said lands, and that there existed thereon at the time of such covenant an easement in one Needles, who at that time had of right a private way across the lands so conveyed, and that the same was a breach of complainant’s covenant, by reason of which she sustained damage. The evidence shows that this way had been obstructed by gates and posts for a long period of time, but had been used by Needles and her grantors and by others, and the weight of proof shows it was a private way appurtenant to the lands owned by Mrs. Needles and not a public highway. The evidence also shows that such easement is inconvenient and damaging to the defendant. A decree for foreclosure was entered and the court made no finding as to whether the road was a public highway or a private way, and decreed the foreclosure of the mortgage, and finding the amount due to be $629.30. The evidence shows that the way was originally opened as a private way and intended as such, and for many years gates were maintained, until the stock law was adopted in that county, and the fact of maintaining gates would exclude the presumption of a dedication to the public. The Ill. Ins. Co. v. Littlefield, 67 Ill. 368; Hemingway v. The City of Chicago, 60 Ill. 324; Luecken v. Wuest, 31 Ill. App. 506. Neither does it appear that it had been used uninterruptedly for a requisite length of time by the public as against the assertion of the owner of his right to fence the same and actually placing gates therein; nor was it either kept in repair or taken charge of by proper officers. That it was not a public highway by prescription, see Toof v. City of Decatur, 19 Ill. App. 204; Grube v. Nichols. 36 Ill. 92. And there is no claim that it was laid out as a public highway in pursuance of the statute. The evidence, however, clearly establishes the existence of an easement in Mrs. Needles as appurtenant to her farm to pass over the land of the defendant as a right of way, and that easement in her is an incumbrance. Harlan v. Thomas, 15 Pick. 66; Beach v. Miller, 51 Ill. 206; Sec. 10, Chap. 30, R. S. Ill., provides that “ no covenant of warranty shall be considered as broken by the existence of a highway upon the land conveyed unless otherwise particularly specified in the deed.” That act was adopted and went into effect July 1, 1874. At that time the right of eminent domain by condemnation for a cartway or a private way did not exist in any individual under the constitution as it then stood, and such right could not be asserted until the amendment to the constitution, November 5,1878. The term highway, as used in Sec. 10 of the Conveyance Act, we hold had application at that time to public highways only. Public ways are commonly termed highways; a private way is either an easement or a customary right. Before the adoption of Sec. 10 of the Conveyance Act, knowledge of the existence of a public or private way on the part of the grantee was . no defense in a suit on the covenants of the deed. Beach v. Miller, supra; Wadham v. Swan, 109 Ill. 36. In Beach’s case it was said: <c In the case of Prescott v. Trueman, 4 Mass. 627, Chief Justice Parsons, in delivering the opinion of the court sayss £ Thus the right to an easement of any kind in the land is an incumbrance. So is a mortgage. So, also, is a claim of dower, which may partly defeat the plaintiff’s title by taking a freehold in one-third of it.’ And to the same effect are. the cases of Mitchell v. Warner, 5 Conn. 497, and Harlow v. Thomas, 18 Pick. 68, where it is held that a private way over the land is an incumbrance. A right to go upon the land to clear an artificial watercourse has been so held in Prescott v. Williams, 5 Met. 433, and a right to cut timber on land was held to be an incumbrance. Catchcart v. Bowman, 5 Barr. 319.” That the easement in Needles was an incumbrance and her right of way appurtenant is not included in the term highway, as used in Sec. 10 of the Conveyance Act, and that incumbrance existing at the time of the delivery of the deed to the defendant by the complainant the implied covenant existing in that deed by reason of the statute was broken on the delivery of the deed, see Wadhams v. Swan, supra; Christy v. Ogle’s Executors, 33 Ill. 295. And that defense may be set up in answer to a bill to foreclose a mortgage given to secure the purchase price, see Patterson v. Sweet, Adm’r, 3 Ill. App. 550; Coffman v. Scoville, 86 Ill. 300; Tenney v.Hemenway, 53 Ill. 97. The evidence showing the defendant was damaged by reason of the existence of the right of way, the extent of the damage should have been set off against the amount of the notes, and that not being done the decree must be reversed and the cause remanded. Reversed a/nd remanded.