Hyde Park Thompson-Houston Light Co. v. Brown

Mr. Justice Waterman delivered the opinion of the Court. The controversy in this case turns upon the effect, considering the circumstances under which it was made, of the release deed executed by Richard S. Thompson of the north seventy feet of lots 12 and 13, together with all the appurtenances and privileges thereunto belonging or appertaining. At this time Mrs. Brown was under no obligation to do anything to aid appellant in obtaining or perfecting a claim to a right of way over lots 12 or 13 to Fifty-third street. Her conveyance to Johnson, through which appellant derived title to the north seventy feet of these lots, was of the entire lots; her purchase money mortgage from Johnson covered the property she conveyed; she was in no ivise responsible for his conveyance of the north seventy feet of this property, or oE a right of way along the east side of lot 13, and her rights as a mortgagee were not diminished thereby. Under these circumstances, she consented to the execution by the trustee of the release deed stating that thereby was released “ the north seventy feet of lots 12 and 13 (this release in no manner to effect the lien of said trust deed upon the remainder of the premises therein described),” “ together with all the appurtenances and privileges thereunto belonging or appertaining.” If her intention and the understanding of Mr. Johnson was, that the release should be not only of the north seventy feet of these lots, but of a right of way over the south eighty feet of lot 13, it is difficult to see why such intention was not plainly and unequivocally expressed in the release. The master and the court below found that Mrs. Brown had, when she authorized the execution of the release deed, neither knowledge nor information that any right of way was claimed across the south eighty feet of lots 12 and 13. Ho such right of way, appurtenance or privilege was apparent; it would, therefore, as the master found, be a fraud upon Mrs. Brown to construe the release to be what is not expressed therein, and was never intended by her or the trustee. The use of the words “ with all appurtenances ” is not necessary in order that easements pass with a grant of the estate to which they are attached. Irgals v. Plamondon, 75 Ill. 118-124; Morrison v. King, 62 Ill. 30. An easement which is not apparent, of which the grantor has not made use, and of which he has no information, does not pass by implication. Ingals v. Plamondon, 75 Ill. 118. The release by a mortgagee of certain described premises, will not be construed as a release of the mortgage upon other portions of the estate in which the moit^agor has, without the consent of the mortgagee, seen fit to create, as against himself, an easement as an appurtenance to the lands described in the release. Harlow v. Whitcher, 136 Mass. 553-554. The case at bar is essentially variant from Smith v. Heath, 102 Ill. 130, in which the mortgagee is found to have cooperated with the mortgagor in inducing the purchase of lots under an implied understanding that a park should forever remain appurtenant thereto. Mrs. Brown had no part in, and derived no profit from, the creation of the alleged necessity for appellant to have a right of access to 53d street. The decree properly directs a sale, first of the premises retained by the mortgagor, and then of the remaining premises in the inverse order of alienation, with the following provision: “ If the aggregate amount bid for the said lands so offered in severalty shall be insufficient to satisfy this decree, then said master shall offer for sale said lots twelve (12) and thirteen (13) [except the north seventy (70) feet thereof], together as one parcel, with all easements and all rights and all claims therein of said defendants and of all persons claiming under them, save only the right of redemption provided by law, and if the amount bid for the said lands so offered together shall exceed the aggregate of the amounts bid for said lands when offered in severalty as above provided, then said master shall sell said lands together.” In this there was no error. Iglehart v. Crane, 42 Ill. 261-268. The decree of the Circuit Court is affirmed.