Leavenworth Lodge No. 2 v. Byers

The opinion of the court was delivered by Horton, C. J.: Prior to October 31, 1868, the Odd Fellows’ Building Association, of Leavenworth, being the owners of lots 17 and 18, in block 70, in that city, constructed on the lots a three-story brick building fronting on Shawnee street. The building extended back from the street 94-J- feet. Its foundation was of stone, 30 inches thick, and the brick walls erected upon the stone foundation were 24 inches thick. The building extended up to the east line of lot 18. On the 31st day of October, 1868, the Odd Fellows’ Building Association mortgaged the lot and building thereon to the Connecticut General Life Insurance Company to secure the payment of about $35,000, with interest. After this mortgage was executed, and while in full force, M. S. Grant, the owner of lots 19 and 20, in block 70, being desirous of erecting a two-story brick building on his lots covering the whole of the same and up to the east line of lot 18 (lot 19 being adjoining to lot 18 on the east), on January 3, 1873, entered into a written agreement with the Odd Fellows’ Building Association to make use use of the easterly wall and foundation on lot 18 as a party wall, and to extend the wall on that lot from the south end thereof to the alley. In pursuance of the agreement, M. S. Grant, in 1873, built a two-story brick building upon his lots, the same being 48 feet front on Shawnee street, and 125 feet deep. He also erected, at his own expense, along the east line of lot 18 a stone foundation 30J feet in length and 30 inches thick, and left on the west side thereof places for joists, in case the building association should wish to extend their building over the whole of lots 17 [330] and 18. He erected on this foundation a brick wall two stories high and 30J feet in length, and extended the joists of his building supporting the second floor thereof, and the joists supporting the roof of his building about four inches into the east wall of the brick building on lot 18, and into the 30-|-feet of the wall erected by him. The joists were 10 inches wide and 2 inches thick, and 16 inches apart from center to center, and have remained so extended into the east wall since 1873. The court specially found “That said east wall is not perceptibly injured or weakened thereby, or the said Odd Fellows’ building appreciably damaged or injured in any respect because thereof, and that no perceptible damages have accrued to the said building of plaintiffs because thereof.” On the 31st day of January, 1873, the Connecticut General Life Insurance Company commenced its action in the district court of Leavenworth county to foreclose its mortgage upon lots 17 and 18 and the building thereon, against the Odd Fellows’ Building Association, M. S. Grant, and others, and on the 17th day of September, 1873, obtained judgment against the Odd Fellows’ Building Association for about $39,000, and also a decree of foreclosure. M. S. Grant, although duly served with a summons in that case, did not file an answer, but made default. The judgment barred him and the other defendants from any interest in lots 17 and 18 and the buildings and improvements thereon, from and after sale thereof under the foreclosure. Lots 17 and 18 were duly sold by the sheriff of Leavenworth county, and the sale confirmed, and the deed executed to the insurance company on the 19th of December, 1873. This deed was recorded on the same day in the office of the register of deeds in Leavenworth county. Afterward, the plaintiffs became the owners of lots 17 and 18 by conveyance from the insurance company, and were the owners thereof at and before the commencement of this action. In 1887, James L. Byers and Elizabeth Mayo, the present owners of lots 19 and 20, obtained title of these lots by sheriff’s deed under a decree of foreclosure.., Lewis Mayo [331] is the tenant of the premises under James L. Byers and Elizabeth Mayo. After the insurance company became the owner of lots 17 and 18, under its sheriff’s deed of the 19th of December, 1873, M. S. Grant had no further title, right or interest in the east wall on lot 18. He was barred of all title, right and interest after the sheriff’s sale of the premises and the execution of the deed. The decree of foreclosure under which James L. Byers and Elizabeth Mayo obtained title, in 1887, was upon a foreclosure of a mortgage given in 1874, after the execution of the sheriff’s deed to lots 17 and 18, of the 19th of December, 1873, to the insurance company. Therefore, James L. Byers and Elizabeth Mayo purchased lots 19 and 20 with notice of the title of the insurance company to lots 17 and 18, and that the sheriff’s deed to lots 19 and 20 gave them no title, right or interest to any part of lot 18 or the building or improvements thereon. The stone foundation and the brick wall erected on lot 18 by M. S. Grant, together with so much of the joists as were put up by him in the east wall on lot 18, became the property of the insurance company, the defendants not being, the owners thereof by their purchase at the sheriff’s sale of lots 19 and 20. This the defendants seem to have admitted upon the trial, because they offered to quitclaim to the plaintiffs all their interest, if any, in lots 17 and 18, and in the wall of the east line of lot 18, and also offered to pay all the costs up to the time of making the offer. [332] 1. whañnciüdea in foreclosure —right to use party wall. [331] It also appears from the record that the sheriff’s sale of lots 17 and 18 to the insurance company took place on the 6th of December, 1873 — more than 14 years and 10 months before the commencement of this action. If the plaintiffs had delayed a few days longer in the bringing of their action it would have been barred by the 15 years’ statute of limitation. In view of all the facts, the trial court committed no error in refusing to render further judgment enjoining or restraining the defendants. (Rankin v. Charless, 19 Mo. 490; Abrahams v. Krautler, 24 id. 69.) The defendants, having [332] no interest in the holes or joists in the east wall of lot 18, nor any interest in so much of the joists as are within the east wall, cannot be required to fill up the holes or take the joists out. All of the wall belongs to the plaintiffs, not to the defendants; therefore the judgment goes further than necessary. Of course, in the enforcement of the judgment of the trial court, neither the plaintiffs nor their agents or servants have any right to enter upon lots 19 or 20, or to negligently, recklessly or wantonly injure the building on those lots. Under the sale of lots 17 and 18 upon the decree of foreclosure and the judgment in this case, the plaintiffs are entitled to their “pound of flesh,” but “no jot of blood.” The judgment declares that the plain- ^ ° , tiffs “are'the owners of lots 17 and 18, with all > the walls, buildings and improvements thereon up to the east line of lot 18, and that they are entitled to the possession thereof.” This includes the holes in,the east wall of the brick building on lot 18, and all of the joists in the wall. 2. Adjoining “nTdu«re1IMs If there shall be any trouble between the plaintiffs and defendants about the severance or cutting of the joists between the buildings on lots 18 and 19, a court of equity, upon application therefor, will give such relief in the premises as the plaintiffs are entitled to. If the plaintiffs, being the owners thereof, desire to take down or repair the east wall on lot 18, or any part thereof, so as to affect in any way the building on lot 19, under the circumstances disclosed in the record, sufficient notice ought to be given to the defendants. The general principle is that every owner has absolute dominion over his own property, and therefore the plaintiffs, as owners of lots 17 and 18 and the building and improvements thereon, have the natural right to the use of the same in their own way; but the right of an owner to use his own land in any way he desires, or to take down or change any foundation or wall or other improvement, without being answerable for the consequent injury to his neighbor’s house, is subject to the [333] qualification that he must exercise due care and skill, and that he will be liable in damages, if the injury to his neighbor is occasioned by the negligent and unskillful manner in which the work is performed. (Moody v. McClelland, 39 Ala. 45.) 3. error-time of filing, A cross-petition has been filed by the defendants, making complaint of the rulings and judgment of the trial court. It appears that the judgment was rendered on the 10th of May, 1890. The plaintiffs filed their petition in error in this court on December 16, 1890, about seven months after the judgment. The cross-petition was not filed in this court until April 24, 1894, nearly four years after the motion for a new trial was overruled and the judgment rendered. Errors complained of by a defendant in error will not be considered in this court when he fails to file a cross-petition in error. (Hanna v. Barrett, 39 Kas. 446.) The filing of a cross-petition is the commencement of a proceeding in this court, at the instance of the party filing the same, to reverse or modify an order or judgment of the trial court. Such a proceeding must be commenced within one year ® 4 J after the rendition of the judgment or the making of the order complained of, unless the party is under disability. The proceeding to reverse or modify the judgment upon the cross-petition has been commenced in this case more than a year after the rendition of the judgment complained of, and therefore such cross-petition has been filed too late. .As the plaintiffs have no cause of complaint against the judgment rendered, it will not be changed or reversed at their instance. The prayer of the petition in error of plaintiffs will therefore be refused. All the Justices concurring.