Wetherell v. Brobst

Dillon, Ch. J. i. cohtkaot : construction of: easement, I. We have carefully examined the testimony in this cause, and find that the decree is right and should be affirmed, unless the points made 7 1 by the defendant’s counsel are well taken. It is first contended by them, that the contract of May 15, 1862, is alternative, the option being with the defendant; that is, the defendant may either make the plaintiff a title to the twenty-two feet or refund the twenty-five dollars, as he may elect. We hold that defendant cannot elect to refuse to make the title, against plaintiff’s objection, upon restoring the twenty-five dollars. The obvious purpose of the defendant in the latter clause in the agreement, was to limit and determine the extent of his liability, if it should fall out that he should be unable to make to the other party, a good or at least satisfactory title to the strip of land. Its purpose was not to enable him to play fast or loose at his mere will or pleasure. II. Again, it is contended that the defendant’s parol testimony as a witness, shows that his intention in executing the said contract, was to confer a personal privilege upon Gillespie who was to enjoy it only so long as the defendant should be pleased to allow him to do so; that defendant by refunding the money received was to have the right to revoke the privilege or rescind the [589] license at Ms will, and therefore, inasmuch as Gillespie has sold to the plaintiff, and defendant has tendered the plaintiff the twenty-five dollars, the latter has no claim or right to a specific execution of the contract. No fraud, no mistake, no accident, in the making of the writing of May 15, 1862, is averred or attempted to be shown. Therefore, parol evidence of an intention on the part of the defendant, directly in the face both of the language and legal effect of the written agreement, must be disregarded. The right contracted for was an easement as distinguished from a license, and is not revocable at the will of the defendant. Washb. on Easemt. p. 5, pl. 5; Id. p. 18, pl. 1, 2; Karmuller v. Krotz, 18 Iowa, 352, and eases cited. 2 _failure «tie1neieetion of vendee. III. But the objection most strongly urged in argument against the decree below, is, that inasmuch as the defendanf has n°t yet a perfect title and may never get one, since Patton (the original yen dor) has n0£ yef¡ been fully paid; defendant cannot be decreed to convey or to execute the agreement. If the defendant had not denied the plaintiff’s right under the agreement, and forcibly obstructed his enjoyment of the way, and particularly if the plaintiff were, while the title was in this shape, insisting upon a conveyance with covenants, we should regard the objection (in view of the language of the contract read in the light shed upon it by the circumstances under which it was made) entitled to great and probably decisive weight. We admit that the plaintiff could not be compelled to take a quitclaim, while the defendant’s title is in its present condition, and that if the defendant should wholly lose the land, and the plaintiff had not elected to run the risk of such loss of title, the defendant would be bound, under the agreement, to refund the twenty-five dollars. This provision was made for the benefit of Gillespie [590] (plaintiff’s assignor) in case defendant should lose the land, and, as before stated, it was also made to fix the amount.of defendant’s liability in that event. But, if the plaintiff is satisfied with the title of the defendant, and would rather take that without warranty, than wait and have a return of the consideration money, if defendant’s title shoitld fail, it is equitable, and within the spirit and reason of the authorities, to allow the plaintiff to have such an • execution of the contract as is practicable. Presser v. Hildenbrand, ante, p. 483; see, also, 2 Lead. Cases, Eq. pt. 2, p. 35; Story Eq. § 779; 1 Sugd. Vend. 406. This view, we are satisfied, carries out the intention and purpose of the parties to the contract on which the plaintiff relies. The decree below was carefully framed, and ordered defendant to convey only his interest in the twenty-two feet. This satisfies, of course, all claims of the plaintiff under the agreement, whatever may hereafter chance to the title of the defendant. This decree will not harm the defendant, while it secures to the plaintiff the use of the way, and the better enables him, if he should find it necessary, to treat with Patton or redeem from his lien for the purchase-money, if thereto entitled. 3. — . ease-plied grant, IV. It is objected, that the assignment of the agreement from Gillespie to plaintiff is void for want of a revenue stamp. No such point was made in the pleadings, nor on the introduction of evidence on the trial. This objection is not properly presented by the record, and if it were, it is not sustained thereby, for the original assignment is not before us, and there is no statement in the evidence or pleadings in relation to the stamping thereof. [591] But, aside from this, it would appear that the private way in question, was an apparent and visible easement attached to? actually used and continuously enjoyed, in connection with the farm which Gillespie conveyed to the plaintiff. If so, it would pass, by implication, as an incident to the grant of the farm. Such is the doctrine of Karmuller v. Krotz (supra), and that case is well supported by the authorities. See Washburn on Easement, ch. 1, § 3, particularly p. 25, pl. 12; p. 26, pl. 15; p. 28, pl. 2; p. 36, pl. 12, 13; Pyer v. Carter, 1. Hurlst. and Norm. (Ex.) 916; Glave v. Harding, 3 Id. 937; Morrison v. Marquardt, at present term, as to grants of easements by implication. Affirmed.