Cooper v. Louanstein

The opinion of the court was delivered by Dixon, J. The complainant’s grantor, William J. Cooper, and the defendant, were in 1870 owners of adjoining lots on Market street, in Morristown. On the defendant’s lot stood a dwelling about eleven feet back from the street. Cooper being about to erect a building on his lot, discovered that the eaves of defendant’s house projected over the division line, and thereupon an arrangement was made between him and the defendant in fulfillment of which he, for a cash consideration of $100, conveyed to the defendant in fee a strip of ground one foot wide along the dividing line, the deed therefor containing the following clause: “ This deed is made and accepted upon this express condition and reservation that the said William J. Cooper, and his heirs or whosoever may at any time hereafter own the adjoining land of said Cooper, shall have the full right, liberty and privilege of building up to the line of the lot hereby conveyed and of having and enjoying two windows, one on the first story and one on the second story in the side of such building as he or they may put up, looking out upon said lot, which windows shall not be hindered or obstructed in any way by said Louanstein or his heirs or assigns to any other or greater extent than such windows if now erected could be obstructed by the house of said Louanstein at present standing on his said lot.” Cooper then erected a brick building upon his lot, extending to the street line in front and to the newly-constituted division line on the side toward the. defendant, and in that side placed a window in the second story, near the front, overlooking the de — 301 — fendant’s front yard. In January, 1882, the defendant began the erection of an addition to his house,' extending to the front of his lot and to the old division line between him and Cooper, and being of a height sufficient to obstruct the view from the window before mentioned. The complainant’s bill is filed to enjoin such obstruction. Under the view which we have adopted in this case, no other question need be decided than that of the true meaning of the clause upon which the complainant relies for the maintenance of her suit. She contends that by the “ condition and reservation” in the deed from her grantor to the defendant, she has a right to have her window unobstructed by any erection on the defendant’s lot save the building which stood there when the deed was made. This claim, if maintained, practically deprives the defendant of the use of the front part of his lot except for the purposes of a yard. In view of the facts that in purchasing the one-foot strip, he was protecting only the eaves of his house, and that he paid in cash the full value of the land he bought, it is plain that the claim is one which a priori would be thought not likely to accord with the intention of the defendant. These circumstances may legitimately be regarded as throwing light upon the language of the written instrument, for the court is called upon to put itself in the position of the parties and to avoid, if it fairly can, any interpretation of their words and acts which will 'lead to an unreasonable result. Turning, then, to the language of the clause, we see that the rights which Cooper affirmatively reserved were: 1st, that of building up to the line of the lot conveyed, viz., the one-foot strip; 2d, that of having two windows in the side of his building, looking out upon said lot; and then was added a negative sentence as to the obstruction of these windows. Of these affirmative reservations, the right of building up to the line of the lot conveyed and the right of having two windows in the side of his building, were such as would have belonged to Cooper without being expressly preserved, and the only important words to be found are the phrase “ looking out upon said lot.” This it — 302 — is that gives character and scope to the right which the parties intended to secure. There can be no question of the meaning of this phrase; “ said lot ” is the one-foot strip, just before mentioned, and therefore the windows which Cooper reserved .the right to have and enjoy were windows looking out upon the one-foot strip. If the entire clause, of the deed stopped here, no reasonable doubt could be raised about its interpretation. It would clearly import that the strip, and the strip only, was to be kept open for the use of the windows; an examination of the remainder of the clause does not, I think, disclose any different purpose. It in effect forbids Louanstein to create any new obstruction to the windows, and permits him to maintain whatever obstruction his old building interposed. But in determining the extent of this prohibition, we are to bear in mind that the significant feature of the windows protected is that they are windows loohing out upon the one-foot strip, and hence it is quite reasonable to conclude that this outlook constitutes the measure of the prohibition. In accord with the same notion is the permission to maintain the old obstruction, for, as the house then standing on the defendant's lot overlapped a portion of this strip, he would have been required to remove this projection, unless this permission had been added to qualify the right before reserved. My conclusion, therefore is, that by this deed the parties designed to vest in Louanstein the fee of this one-foot strip, and to reserve to Cooper and his heirs and assigns a right to the use of said strip for his two windows, except so far as such use was already impaired by the house then standing on defendant's lot. An additional circumstance favoring this conclusion is found in the fact that the grantor in this deed denominated the retention of his right a “ reservation,” a sufficiently apt term, if applied to something which he might otherwise have been thought to be surrendering, a totally inapt term, if applied to something which he was then for the first seeking to acquire. The chancellor’s decree dismissing the complainant’s bill should be affirmed, on the ground that the complainant is not entitled to the right which she sets up. — 303 — Beasley, C. J. The question before the court does not, in my opinion, depend on the construction of a written contract, for the conveyance from Cooper to Louanstein is not regarded by me, with respect to the subject of the easement in controversy, as the deed of the latter. In point of fact, that instrument was not executed by him, and, touching the point in dispute, it is not to be attributed to him as a matter of law. As I understand the authorities, none of them lend any countenance whatever to such an attribution, and they can be made to wear such a semblance only by failing to discriminate between the facts to which such authorities properly apply and the facts involved in the present case. The inquiry before the court relates to the grant of an easement by force of a deed not actually executed by the grantee, in lands of the grantee, and which are not, either in whole or in part, transferred by the conveyance. The case is the same as though A should convey to B a tract of land situated in the city of Trenton, and should insert in such conveyance the grant of a right of way over the lands of B, located in Princeton. The question is, by the acceptance of such a deed, is it the deed of B with respect to the transfer of the right of way ? To this query I answer unhesitatingly in the negative. And in the first place it should be noted that if the instrument in the case suggested, and in the one before the court, is to be taken as the deed of the grantee, still it is indisputable that resting on its own footing alone, it would be unenforceable against him, either at law or in equity. This is the effect of the statute of frauds, which requires the signature of the person desirous of passing such an interest in his land. So that if we were to adopt the theory which is rejected by me, we would have the anomaly .presented of a deed of a party being utterly ineffectual for the purpose for which it was designed. It would be styled a grant, but nothing in point of law or of fact would pass under it. If the complainant in the present case had not set forth in his bill acts of part performance of the agreement for this easement, which he asserts is contained in this attributed deed, he would have exhibited a case without any legal or equitable basis; and to — 304 — such a case the ascription of the deed to the defendant is not a necessity,' for if the agreement in question had been by parol it would have been, under the alleged facts, quite as efficacious as though it were under seal. The technical doctriue, therefore, which has in some instances the effect of attributing a deed as the act of a person who never signed or sealed it, is by no means essential or beneficial to the equitable disposition of the class of cases to which the present one belongs, nor indeed to any class of cases that can be imagined. The principles on which the decisions rest, which ascribe a deed to a non-executing grantee, do not warrant their application to the present case. Such decisions relate to stipulations on the part of the grantee, which are connected with' or relate to the land embraced in the conveyance. Covenants contained in such instruments, which have been declared to be binding, have universally been of this character. Such agreements may indeed be collateral to the conveyance, but they must relate to the premises whose title is transferred. This was the condition of things in Finley v. Simpson, 2 Zab. 311, for in that instance the covenant ascribed, as a matter of law, to the grantee, was that he would pay off the money which was secured by a mortgage on the land granted. It is, I think, very plain that if the moneys in question had not been a burthen on the land, the statement of the assumption of the debt by the non-executing grantee contained in the deed of the grantor would not have been imputed to the former as his covenant. And yet that, in effect, is what is claimed on the side of the complainant in the present case. Such a doctrine is not supported by the decision just quoted, nor by any of the authorities which form its foundation. I have examined all of those authorities, and I find that, without exception, they relate to covenants connected with the premises demised or conveyed. Not one of them indicates the doctrine that a statement of an agreement touching alien lands will be imputed to the grantee. Among such authorities the leading one is the case cited from the year-books, 38 Edw. III. c. 8, 9. The facts involved were these: a demise was made to two lessees, only one of whom executed the counterpart of the lease, but both went into posses305 session. The lease contained a covenant, on the part of the lessees, to pay £20 if certain conditions were not complied with. The court decided that the instrument was the deed of both lessees. But the conditions referred to all related to the land demised, and consequently such judgment was a proper basis for the decision in Finley v. Simpson, but will afford no basis for the decision of the present case. . Neither Sir Edward Coke nor Chief-Baron Comyns nor any other legal writer intimates any opinion that the technical rule in question can be. carried any further than it was in this case from the year-books. In Sheppard’s Touchstone vol. 1 p. 177, the law on this head is stated ’ with exactness. This learned writer says: “If'a feoffment or a lease be made to two, or to a man and his wife, and there are ■divers covenants in the deed to be performed on the part of the lessees, and one of them doth not seal, or the wife doth or doth not seal during coverture, and he or she that doth not seal doth notwithstanding accept of the estate and occupy the lands conveyed or demised; in these cases, as touching all inherent covenants, as for payment of rent and the accessories thereof, or clauses of distress, or re-entry, nomine pcence, reparations and the like, they are bound by these covenants as if they did seal the deed.” Both this distinguished author and Lord Coke expressly declare that the root of this legal rule is in the maxim : Qui sentit commodum sentire debet et onus, et transit terra cum onere—that is, that he who takes the land conveyed or demised must take it with the burthen upon it. It is obvious that this maxim cannot be applied to the ease before the court. If covenants relating to alien lands are to be construed as the agreements by specialty of a non-executing grantee, it would follow that any other stipulation which the grantor might insert in his conveyance would be so regarded. Thus the grantee might in such form be made to convey his lands, or to sell a ship or a stock of goods. It seems to me that a rule of law of this kind would be fraught with mischief. If a grantor wishes to obtain a conveyance of lands from his grantee, or wishes to obtain an easement in such lands, it is the reasonable and safe course to require him to obtain a deed to that end, executed by such — 306 — grantee. The law gives a peculiar efficacy to deeds, on the ground that the act of signing, sealing and delivering such instruments denotes caution and deliberation in the person executing them. It would be an unwise policy to introduce into the law, instruments having such efficacy which have not been, in their formation, attended with such formalities. My footing, therefore, in the present matter is this: I do not regard the clause relating to the easement in question, as contained in a deed of the defendant, Louanstein; but I regard such statement, the deed being accepted by Louanstein, as a circumstance of evidence, more or less strong, as the case may be, tending to show a parol agreement for such easement. ' If 'this were the deed of the defendant it could not be contradicted or altered by extraneous evidence; it would have to speak for itself, and all that this court could do would be to enforce its terms. This is the force that I refuse to give to it, looking upon it as simply evidence of a character susceptible of explanation or alteration by the other facts in the case. If there were no other proof on this subject except the statement of the bargain in the grantor’s deed, I should treat it as was done in the ease cited from the New York reports, as full proof of an agreement in the terms of such statement, and, as the transaction has (in part been executed, should favor its enforcement. But the matter does not stand on such statement alone; there is other testimony on the subject that has satisfied me that the easement, as claimed by the complainant, was not a part of the bargain. The defendant did not agree to grant the easement to the extent set up in the complainant’s bill. Taking this view of the testimony, I will vote, on that ground, to affirm this decree.