Ross v. Harben

Opinion of the Court, Boggs, J. Lewis W. Ross; one of the plaintiffs in error, entered into a contract with one George B. Sharp, obligating himself, upon the payment of certain sums of money, to convey to Sharp a small tract of land. In the contract is this stipulation: “ Said Sharp is to make a good lawful fence (around certain parts of the premises) prior to his being entitled to use and occupy the same, and as same is being fenced, Ross is to furnish to aid in building said fence, three strands of galvanized wire for the west, south and east sides, and said Sharp is to be at all other expense in the building, repairing and keeping up said fence.” Afterward, by a memorandum in writing, signed by Ross and Sharp and attached to the contract, Ross agreed that upon the payment of other sums of money he would convey to Sharp a tract of land adjoining that mentioned in the first or original contract. In this memorandum is found this stipulation: “ Said Sharp is to make and keep up, at his own cost and expense, a good substantial fence, that will turn all stock, not less than five feet high.” Sharp assigned the contract and the memorandum thereto attached, to the defendant in error, Harben, to whom Boss and wife, plaintiffs in error, executed and delivered a deed conveying to him the premises described in the two instruments. This deed contained the following clans®: “ The said party of the second part (defendant in error) and his grantees, at his and their own cost and expense, to keep up a good and substantial fence, that will turn all stock, not less than five feet high.” "When completed the deed was folded by Boss and handed to Harben, who accepted it without examination and filed it for record without knowing that the deed was so conditioned. This was a bill in chancery brought by Harben against Boss and wife, the prayer of which is that the clause in question be expunged from the deed. Upon a hearing upon bill, answer, replication and proofs, the court rendered a decree granting the relief prayed for. This is a writ of error sued out by the defendants to the bill to obtain a reversal of the decree. The bill charges that the clause in question, was fraudulently inserted in the deed for the purpose of deceiving and defrauding the complainant therein, but we find no proof in support of the charge. The contracts between Boss and Sharp, as we construe them, required that Sharp should construct a fence of the height, character and strength specified, and so keep and maintain it while the contract remained an executory one, but there is nothing in the contract indicating that the parties contemplated that such agreement should be imposed as a burden upon the title to the land. This undertaking was, we think, personal in character and not in the nature of a coAenant running Avith and attaching to the title to the land. Hartening v. Wettee, 50 Wis. 285; Kennedy v. Owen, 131 Mass. 431, 134 Mass. 227. The duty of Sharp or his assignee, after having completed a fence in accordance Avith the contract, Avas only to make necessary repairs upon that fence at his own cost or expense until he received a deed. The contract did not devolve upon him or those holding under him the burden of perpetually maintaining a fence about the premises, hut only the burden of keeping and maintaining a fence until he should pay the purchase money of the land and become entitled to a deed from Ross. The additional burden of perpetually maintaining the fence is imposed by the clause inserted in the deed, and moreover, perpetually imposed upon any one holding the title under him. The holding and decree of the Circuit Court, that this objectionable clause should be expunged from the deed, was, we think, correct, and it is affirmed.