author: Mr. Justice Sheldon

text:
    Frank Cihak v. Hynek Klekr et al.

      Filed at Ottawa May 15, 1886.

    1. Easement—u'hen appurtenant to an estate—of an alley way—right of purchaser. Where the owner of two tenements, or of an entire estate, has so arranged and adapted them that one tenement or one portion of the estate derives a benefit and advantage from the other, of a permanent, open and visible character, and he sells a portion of the property, the purchaser will take the tenement or portion sold with all the benefits and burdens which so appear at the time of the sale to belong to it. It is not necessary, in such case, that the easement claimed by the grantee must be really necessary for the enjoyment of the estate granted. ■ It is sufficient if it is highly convenient and beneficial therefor.

      2. In this case, the agent of thev owner of three lots (19, 20 and 21,) lying parallel to each other and adjoining, for convenience in leasing, made a plat of lots 20 and 21, dividing them transversely into four lots, leaving an alley ten feet wide off the ends of such lots next to lot 19, which accommodated that lot as well as the other four of the subdivision, and was highly convenient and beneficial to lot 19. The agent, in negotiating for the sale of the half of lot '19 next to the alley, exhibited to the purchaser a plat showing such alley, acknowledged by the lot owner, and promised to have the same recorded, and the sale was closed by the purchaser on the assxirance and belief that such alley was an easement to his lot, and the owner, in making sales and conveyances of the other lots, sold with reference to such plat, and reserved off the end of each of the four lots ten feet next to lot 19, and finally put such plat on record, on which the alley was marked, "reserved for private alley.” Held, that such alley became and was an easement appurtenant to lot 19, which could not be destroyed by the owners of the other lots without the concurrence of the purchaser of lot 19. In such ease, the subsequent sale of lots by such plat, reserving the alley, implied knowledge by the owner of the same, and was evidence tending to show his adoption and confirmation of the subdivision.
    3. Same—proof of the owner's intention, in establishing an alley. Where it becomes material to show a party’s intention in regard to the object and purpose of an alley between his lots, it is not competent to prove, by a witness, that the intention of the owner was to reserve the alley for lots on one side thereof only. It is not competent for a witness to testify to another’s intention. All that is proper in such case, is, to testify to acts and declarations, as showing intention, when the question is, what others dealing with the property had reason to believe was the intention, from the circumstances, and acts done.
    Writ of Error to the Appellate Court for the First District ;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. Thomas A. Moran, Judge, presiding.
    Plaintiff in error, Frank Cihak, filed his amended bill June 5, 1884, to enjoin the defendants in error from closing up or obstructing an alley running the entire length of his lot and in the rear of the lots of the defendants.
    In 1859, one Wilder, of Chicago, was the owner of lots 19, 20 and 21, each having a frontage of fifty feet on DeKoven street, in block 35, in school section addition to Chicago. At that time the land was occupied by squatters, and Wilder employed one John Gunzenhauser, as his agent, to dispossess the occupants, and rent the property. Gunzenhauser removed the squatters, and subdivided the lots according to a private plat made by himself, as follows:

    The east two lots (20 and 21) were subdivided into four lots, fronting on Jefferson street, and the west lot (19) on DeKoven street, he divided into two lots, on DeKoven street. Wilder afterwards sold all the lots to Henry G. Hubbard, of Middletown, Connecticut, who remained owner for eighteen or twenty years. About 1878, Henry G. Hubbard sold all of the lots to Mrs. B. K. Hubbard, (Anna J. Hubbard,) as lots 19, 20 and 21. Gunzenhauser sold the lots, as subdivided, for Mrs. B. K. Hubbard, the then owner. He acted as the real estate broker in the sale of all the lots which were sold to the plaintiff and defendants in error. He advertised them for sale, and the deeds and other papers were drawn in his office. With the exception of an interval of one or two years, Gunzenhauser was. the agent, having charge and control of the whole property, paying taxes, collecting rents, etc., from 1859 down to the time all the lots were sold.
    In July, 1882, the plaintiff in error, Gihak, began his negotiations with Gunzenhauser for the purchase of the east half of lot 19. He employed one Kaspar, a real estate dealer, as his agent in the matter. Kaspar went to Gunzenhauser, told him he wished to purchase the lot on the alley for Gihak, and the other or west half for Mrs. Bain, tlpon examination of the abstract of title which had been given him for that purpose, Kaspar did not find any plat of record showing this alley. He and Gihak reported this fact to Gunzenhauser, who said, “That is all right—I have a plat here, ” and he showed Kaspar the plat, saying it was going to be put on record. He further showed them that the plat was acknowledged, and said he was going to sell the other lots subject to this plat, and the alley as it was being platted out. At that time, Mrs. E. K. Hubbard owned the entire lots 19, 20 and 21, no pa-rt of them having been sold. Kaspar told Gunzenhauser that Gihak would not buy unless the plat was put on record, and Gunzenhauser promised to do that. Thereupon Gihak bought the east half of lot 19. He testified he would not have purchased the lot if there had been no alley along the east line, and if Gunzenhauser had not promised to record the plat. A warranty deed was made by the owner, Mrs. E. K. Hubbard, (Anna J. Hubbard,) and Elijah K. Hubbard, her husband, to the plaintiff in error, Frank Gihak, conveying the east half of said lot 19, in block 85, school section addition to Chicago, “together with all and singular the hereditaments and appurtenances thereunto belonging or in anywise appertaining. ” The deed was dated July 15, 1882, acknowledged August 30,1882, and not delivered until September 7, 1882. The plat shown Ciliak and Kaspar by Gunzenhauser, and which was afterward recorded, as promised, is as follows:

    “State oe Illinois, ") Coo/c County. )
    “I, Samuel S. Greeley, do hereby certify that I have surveyed lots 20 and 21, in block 35, of school section addition to Chicago, and that I have subdivided the same into four lots and a private alley, all of which are correctly represented upon the plat hereon drawn.
    Chicago, July 28, 1882.
    Samuel S. Gbeeley, Suweyor. ”
    “Chicago, August 11, 1882.

    “This is to certify that the above subdivision and plat were made by my direction. Anna J. Hubbabd.”

      The plat was acknowledged, in statutory form, by said Anna J. Hubbard, August 11, 1882, and recorded September 19, 1882.
    The east half of lot 19 abutted on the west line of the alley. The alley which Gunzenhauser laid out in 1859, and for which he then originally drove the stakes, is the same as the private alley shown on the recorded plat, running north and south along the entire east line of lot 19, now owned by Cihak. Some time after Cihak purchased, all of the defendants in error purchased their lots from the same agent, Gunzenhauser. and received warranty deeds from the same grantors, Anna J". Hubbard and B. K. Hubbard, her husband.
    The deed to Hynek Klekr and Anna Klekr, two of the defendants in error, bears date August 8, 1882, was acknowledged September 8, 1882, and recorded November 23, 1882. The record shows it was delivered some days after Cihak’s deed was delivered. The deed conveys “lot i, in the subdivision of lots 20 and 21, in block 35, school section addition to Chicago, reserving, however, the use of the west ten feet of said lot for a private alley.” The deed to Joseph Kyasnieka, another of the defendants in error, bears date August 3, 1882, was acknowledged September 8, 1882, and recorded Septem-. ber 19, 1882. It conveys lot 2, in the same subdivision, and with the same reservation. The deed to Jaroslay Lenoch, another of the defendants in error, bears date February 1, 1884, was acknowledged February 8, 1884, and recorded February 12, 1884. It conveys lots 3 and 4, in the same subdivision.
    Upon the east half of lot 19, long before Cihak purchased, there was a cottage, covering the width thereof on the De Koven street front of the lot, having a door leading into the alley, and a window facing it, and the alley was used as a means of ingress and egress to and from the building, and for receiving coal and wood. Such was the condition at the time Cihak purchased, and he soon after moved the cottage to the rear of the lot, and on the front facing DeKoven street he erected a substantial three-story brick building, leaving a space of yard between the cottage and brick building: Both buildings
    stand on the line of the alley, and have windows facing it. The use of the alley always was and is necessary to afford means of ingress and egress to and from the yard. The occupant of the cottage is a milk dealer, and uses the yard for his horses and wagon. An instrument in writing, purporting to vacate the alley, was executed and acknowledged by four of .the defendants in error, the owners of lots 1, 2, 3 and 4, on February 12, 1884, and, acting thereon, they attempted and proceeded to move some buildings on the alley, and thereupon the present bill ivas filed. This is a general outline of the facts.
    Upon final hearing, on proofs taken, the circuit court dismissed the bill. On appeal to the Appellate Court for the First District the decree was affirmed, and the complainant brings this writ of error.
    Messrs. Kraus, Mayer & Brackett, for the plaintiff in error:
    The evidence establishes the fact that Cihak has an easement in the alley, which can not be destroyed without his concurrence.
    A dedication is a voluntary appropriation of an estate to the public, which may be done by writing, by parol, by declarations, or by acts in pais, and inferred from acquiescence in the public use of it. Angell on Highways, 135; Smith v. Flora, 64 Ill. 93; Godfrey v. Alton, 12 id. 29; Wilson v. Saxon, 27 Iowa, 15; Harding v. Jasper, 12 Cal. 642; Green v. Chelsea, 24 Pick. 71; Dodge v. Stacy, 39 Vt. 574; Child v. Chappell, 9 N. Y. 256.
    There is no fixed time required in order to make a dedication effectual. Alvord v. Ashley, 17 Ill. 363; Reese v. Chicago, 58 id. 322; Fisher v. Beard, 32 Iowa; 346.

      The questions asking for the intentions of Mrs. Hubbard in respect to the alley, were improper. Cook v. Whiting, 16 Ill. 483; Miller v. Washburn, 117 Mass. 371; Diedrich v. Railway Co. 42 Wis. 248; Preston v. City of Nevada, 34 Texas, 684; Washburn on Easements, (5th ed.) 75.
    Belying upon the plat showing the alley, plaintiff in error bought the east half of lot 19, by express reference to it. Waugh v. Leach, 28 Ill. 488; Jacksonville v. Railroad Co. 67 id. 540; Railroad Co. v. Hartley, 67 id. 539; Gridley v. Hopkins, 84 id. 528; Gebhart v. Reeves, 75 id. 301; Smith v.Heath 102 id. 130; Gosselin v. Chicago, 103 id. 623; Kuecken v. Voltz, 110 id. 264.
    The rights created by the plat must be ascertained exclusively from the plat, and can not be enlarged or diminished by the parol construction of those who made it. Diedrich v. Railway Co. supra; Preston v. City of Nevada, supra.

    The sale of a house fronting on an open strip of land belonging to the vendor, makes that strip of land a highway. Woodyer v. Hadden, 5 Taunt. 137.
    When the owner of two heritages, or of one consisting of several parts, has arranged and adapted them so that one derives a benefit and advantage from the other of a continuous and obvious character, and he sells one of them" without making mention of those incidental advantages or burdens of one in respect of the other, there is, in the silence of the parties, an implied ünderstanding and agreement that these advantages and burdens shall continue as "before the separation of title. Morrison v. King, 62 Ill. 30; Ingalls v. Plamondon, 75 id. 118; Hadden v. Shoutz, 15 id. 581; Gerber v. Grabel, 16 id. 223; Thomas v. Wiggers, 41 id. 471; Washburn on Easements, *50.
    An easement, however, in order to pass by a severance of the heritages, need not be a physical necessity, it being sufficient .if it is “highly convenient and beneficial therefor. ” Goddard on Easements, 122; Washburn on Easements, 95;
      Railroad Co. v. Jones, 50 Pa. St. 417; McCarthy v. Kitchenman, 47 id. 239; Jones v. Jenkins, 34 Md. 1.
    Messrs. Blum & Blum, for the defendants in error:
    Gunzenhauser had no authority to make a private plat, or subdivide lots 20 and 21, and his act could not bind the owner. Gentleman v. Soule, 32 Ill. 272; Chicago v. Johnson, 98 id. 618.
    A primary condition of every valid dedication is, that it •shall be made by the owner of the fee. Baugan v. Mann, 59 Ill. 494; Harding v. Town of Hale, 83 id. 506; Gridley v. Hopkins, 84 id. 530.
    It is only such a right as is necessary to the enjoyment of the estate granted, that will pass as an easement or an appurtenance. Turnbull v. Rivers, 3 McCord, (S. C.) 89; McDonald v. Lindall, 3 Bawl. 495; Seeley v. Bishop, 19 Conn. 134; Lawton v. Rivers, 2 McCord, 264; Randall v. McLaughlin, 10 Allen, 366; Carbury v. Willis, 7 id. 370; Johnson v. Jordan, 2 Metc. 234; Philbrick v. Living, 97 Mass. 133; Gayetty v. Bethune, 14 Pick. 51; Screvin v. Gregorie, 8 Bich. 163; Ponfret v. Ricroft, 1 Saund. 323; Collins v. Prentice, 15 Conn. 38; Pierce v. Sellick, 18 id. 321; Warren v Blake, 54 Maine, 276.
   Mr. Justice Sheldon

delivered the opinion of the Court:

We are of opinion that upon the facts of this case, Cihak, the plaintiff in error, has an easement in the alley in question, which can not be destroyed without his concurrence. We would have no doubt in the matter had Mrs. Hubbard, the grantor of Cihak, been the actor in the sale to him, and in the previous management of the entire property, instead of Gunzenhauser. The proof establishes, to our satisfaction, that in 1859 Gunzenhauser, as agent, took charge of the three lots, 19, 20 and 21, fronting on DeKoven street, to care for, lease them, and collect the rents; that for the more advantageous leasing of the lots and deriving the most rental, he subdivided them, making of lots 20 and 21 four lots, fronting on Jefferson street, and dividing lot 19 into two lots, fronting on DeKoven street. He made the four lots on Jefferson street ninety feet in depth, and an alley ten feet wide, the alley running from north to south along the entire east line of lot 19, and taking off the west ten feet of the east two lots, thus forming an alley between the east half of lot 19 on the west, and the four lots on the east; that he drove the stakes for the alley; that he made written leases of the lots, according to this subdivision, leasing the four lots as only ninety feet deep; that in 1859 he leased the east half of lot 19, and the tenant in that year put up a fence on the west line of the alley, and as the four lots east of the alley-were leased, the tenant would put a fence on the west end of his lot adjoining the alley, so that by about 1864 all the four lots east of the alley were leased and occupied, and there was either a fence or shed and barn along the entire east line of the alley, and from that time until 1882, with the alley thus open and defined, all the lots were under lease in the manner stated. This establishment of the alley was not only for the use and benefit of the lots from which it was taken, on the east of it, but it was as well for the use and benefit of the east half of lot 19, which adjoined it its whole length on the west. This alley w7as a manifest advantage to the east half of lot 19, and must have enhanced its rental value. There was a building on the east half of lot 19, fronting on DeKoven street, with its side on the line of the alley, with a window in it, and a door leading into the alley. The alley was actually being used for the delivery of coal and wood for the house, and was the only means of access to the house used for such purpose. If all this had been with the knowledge and procurement of the owner, and she had personally sold the east half of lot 19, the case would seem to be brought within the principle, that when the owner of .two tenements, or of an entire estate, has arranged and adapted these so that one tenement, or one portion of the estate, derives a benefit and advantage from the other, of a permanent, open and visible character, and he sells the same, a purchaser takes the tenement, or portion sold, with all the benefits and burdens which so appear at the time of the sale to belong to it. Morrison v. King, 62 Ill. 34; Ingalls v. Plamondon, 75 id. 118; Jones v. Jenkins, 34 Md. 1; Huttemier v. Albra, 18 N. Y. 50; Lampman v. Milks, 21 id. 507; Dunklee v. Wilton Railroad Co. 24 N. H. 489; Kieffer v. Imhoff, 26 Pa. St. 438; Cannon v. Boyd, 73 id. 179; Seymour v. Lewis, 2 Beas. (N. J.) 439.

We do not concur in the view of counsel for defendants in error, that the easement to be claimed by the grantee in such a case must be really necessary for the enjoyment of the estate granted. Mr. Bennett, in his edition of Goddard on Easements, page 122, in speaking on this subject of grants of quasi easements, upon the conveyance of one of two lots, says: “The third class of cases is where the quasi easement claimed by the grantee is not really ‘necessary’ for the enjoyment of the estate granted, but is highly convenient and beneficial therefor; and here the modern rule in America is, that if such easement is ‘continuous and apparent’ at the time of the grant, it passes to the purchaser with his estate, otherwise not.” And in Washburn on Easements, (3d ed.) 95, in the discussing of this question the author says: “It (the easement) must be reasonably necessary to the enjoyment of the part which claims it, and where that is not the ease, it requires descriptive words of grant or reservation in the deed, to create an easement in favor of one part of a heritage over another. ” There can be no doubt, here, that the alley was highly convenient and beneficial for the enjoyment of the estate granted to Cihak.

Gunzenhauser would appear to have made the subdivision he did, of his own motion. Wilder was the owner at the. time, and lived in Chicago. All that goes to connect him with the subdivision, is Gunzenhauser’s statement that Wilder was on the ground several times; helped him to get off the squatters; “made no objections to my letting out the land in that way, and was perfectly satisfied.” While Henry G. Hubbard owned the property, he lived in Connecticut, and is not shown to have had any personal knowledge of the subdivision; and the same with Mrs. E. K. Hubbard. We understand she, too, resided in Connecticut. E. K. Hubbard, her husband, testifies that he resided in Chicago from 1835 to 1885; that he had authority from his wife to act on her behalf; says, he thinks his wife had seen the lots; that he saw them after his wife became owner, perhaps once a month; that he did not recollect consulting with any one regarding the subdivision platted and recorded, except, perhaps, Gunzenhauser. And here the inquiry is suggested, why this plat of the subdivision which was made and recorded at the instance of E. K. Hub-hard, and, as Mrs. Hubbard acknowledges, by her direction, comes to correspond precisely with the subdivision which Gunzenhauser made in 1859', and has the same alley of just ten feet wide, exactly as Gunzenhauser staked it out in 1859. It implies knowledge by Mrs. Hubbard of the subdivision, and is evidence tending to show her adoption and confirmation of that subdivision, and of what was done under it.

But without further pursuing this branch of the case, or expressing an opinion whether the circumstances of the arrangement and use of the alley for the accommodation of this lot of Cihak, and selling the lot-with the apparent appurtenance of the alley attached to it; were alone sufficient to give the grantee of the lot the use of the alley, we come to the conclusion that they were sufficient, when taken in connection with the subsequent sales being made subject to the alley. Defendants in error never bought or paid for the alley, or so -supposed. In the deeds for lots 1 and 2, the use of the west ten feet of the lots for a private alley was expressly reserved. And at the time the deed for lots 3 and 4 was made, there was, upon record, the plat of the subdivision, showing the alley upon it. True, it is named “private alley, ” and it is insisted by counsel for defendants in error that this means private to the lots from which the alley was taken,— those on the east side of it,—and that it was for their use only. Under other circumstances,—of Mrs. Hubbard not being the owner of the ground on the west side of the alley,—this might be so. But was it so under the circumstances here ? The alley had originally been laid out many years before, for the accommodation of Cihak’s lot, as well as the other lots, and had ever afterward been used equally for the accommodation of Cihak’s and the other lots. At the time Mrs. Hubbard put the designation “private alley” on the plat, the alley was being so used, and she was the owner of the ground on both sides of the alley, with a building standing on the west line of the alley, constructed with special adaptation for the use of the alley. The alley was important for the beneficial enjoyment of her lot on the west side of the alley, and must have enhanced its value. There was no apparent purpose why the alley should not be as much for the use of the owner’s ground on the one side of the alley as on the other side.

Under such circumstances, we think the meaning of private was, that the alley was private to the owner’s own ground; that the alley was for the use of the owner’s lots only, but of her lots abutting on both sides of the alley, and not for the use, solely, of her lots on one side of the alley. We give no consideration to the manifestly incompetent testimony of E. K. Hubbard, that his wife’s intention was to reserve the alley as a private alley for the use of lots 1, 2, 3 and 4. It was not competent for him to swear to his wife’s, or any one’s else, intention. All that he might do in such regard, would be to testify to acts and declarations, as showing intention. The question here is, what others had reason to believe was the intention from the circumstances, and the acts done. The alley was an important consideration with Cihak when he purchased. An inspection of the abstract of title did not show the alley of record. This defect was brought to the attention of Gunzenhauser, and to assure Cihak that he would get with his lot the use of the alley, the plat of the subdivision, with the alley appearing upon it, acknowledged by Mrs. Hubbard, was shown by Gunzenhauser to Cihak, the former stating that the plat was going to be put upon record. This satisfied Cihak that he would get the benefit of the alley. Gunzenhauser, who made the sale, Kaspar, who acted for Cihak, and Cihak, no doubt, all believed that the recording of the plat of the subdivision would secure for Cihak the use of the alley. It did not occur to either of them that the word “private” had any significance as excluding such use. To so construe that word would be to make it but a snare to entrap the one purchasing the lot on the west side of the alléy. It would be to give to defendants in error ground which they never purchased, and to rob plaintiff in error of an alley the use of which he had good reason to believe he purchased as an appurtenance to his lot.

We find enough in the facts of this case to have put the defendants on inquiry, so as to have affected them with notice of the circumstances upon which we rest the right of the complainant to the use of this alley.

• The judgment of the Appellate Court and the decree of the circuit court will be reversed, and the cause remanded to the circuit court for further proceedings in conformity with this opinion.

Judgment reversed.

Mr. Justice Scott : I do not concur in this opinion.


source: Caselaw Access Project

author: Mr. Justice Magruder

license: Public Domain

text:
    Henry W. Leman v. Edwin Sherman et al.

      Filed at Ottawa May 15, 1886.

    1. Appointment of a new trustee—as to the, donee of the power, under a will—whether the county court as a tribunal, or the county judge as an individual. A testator, after devising his estate to one, as trustee, and his successor, directed that in case of the death, resignation, refusal or inability of such trustee to act, the county court of the county, upon the application of any person interested, and on notice to all interested, should appoint a new trustee, with all the powers of the original one, and required such new trustee to enter into bond, to be approved by such court, and file the same in the office of the clerk of said court: Held, that the power of appointment was intended to be conferred upon the county court as a tribunal, and not upon the person who might hold the office of county judge.
    2. Same—jurisdiction of county court to exercise such power of appointment—and herein, what court may exercise the power. The county court has no jurisdiction to appoint a trustee to hold property for another after the death, resignation, refusal or inability to act, of one appointed by will, and the power to do so can not be conferred upon the court by the testator in his will.
    3. Under the judiciary system of this State, the only court having jurisdiction to appoint a new trustee of an estate after the death, resignation, removal, inability or refusal of a prior one to act, is a court of equity; and any attempt, by will, to confer this power upon any other court, is abortive.
    4. So where the county court, upon petition filed making all persons interested parties, entered an order appointing a trustee of an estate, in place of one who had died, to fill the vacancy, under a clause in the will of the person creating the trust, it was held, that such appointment was void for want of jurisdiction, and that a court of chancery, when properly invoked, would appoint a new trustee, regardless of the action of the county court.
    5. Same—former decision. The case of Morrison v. Kelly, 22 111. 610, is not in conflict with the view announced in this case. The court in that case selected as the donee of the power, was one having jurisdiction by law to exercise the power conferred by deed. "

    6. Jurisdiction—how acquired. It is not in the power of a testator to confer, by his will, upon the county court, or other tribunal, a jurisdiction or capacity which is not conferred by law.

      Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; -the Hon. Thomas A. Moran, Judge, presiding.
    Mr. William P. Black, for the appellant:
    In 1859, this court, in the case of Morrison v. Kelly, 22 Ill. 610, in discussing the power of the owner of property to-declare a trust, and provide for the appointment of a new-trustee, said: “It will not be contested that a grantor conveying to a trustee may confer a power upon an officer, as, the chief executive of the State, a circuit court judge, a probate judge, or upon any court of record, the power to appoint, a trustee, in the event of the death of the trustee named in the deed.”
    It is thought no precedent can be found holding that a court of record can not be made the donee of the power to-appoint a trustee, because that court may not, under the-statute of its existence, be constituted with chancery jurisdiction. That this and other kindred powers may be conferred upon courts, reference is made to People v. Morgan, 90 Ill. 558, and People v. Williams, 51 id. 65.
    This court, in Golder v. Bressler, 105 Ill. 419, say: “The-general rule unquestionably is, that the author of a trust has-the right to say in what manner vacancies of this kind shall be filled, and when this has been done through the deed creating the trust, such vacancy can not be filled in any other way. ”' See, also, Perry on Trusts, sec. 287; 1 Chance on Powers,, sec. 440; Bowditch, v. Bannelos, 1 Gray, 220.
    Mr. Anthony Thornton, also for the appellant:
    «The mere power of appointment was a naked power, not', being coupled with an interest. The county court had no-estate in the land. It was therefore a naked or collateral power, which even an infant might execute. Perry on Trusts, secs. 52-54; 4 Kent’s Com. 325; Washburn on Real Prop, pp. 2, 305-316.
    Whatever order the court may have made, beside the appointment, as to the vesting of the trust in the appointee, was unnecessary, and should be rejected as surplusage. State v. McCarty, 1 Atlantic Rep. (Md.) 116; Strife v. Reiffs, 55 Md. 92.
    ■ Where the instrument of trust provides for the vesting of the estate in the new trustee, the trust will vest according to the provisions of the instrument, as the author of the trust may mould it at his pleasure. Perry on Trusts, sec. 284; Ellis v. Railroad Co. 107 Mass. 11.
    Judicial power “has never been held to apply to those cases where the judgment is exercised as incident to the execution of a ministerial power. ” Owners of Land v. People, 113 Ill. 309.
    I submit that the appointment by the county court was only the exercise of a ministerial power, and that no law was construed, and none applied.
    When authority is conferred by w'ill upon a person to appoint a trustee, the court should indulge in a very liberal interpretation. Paul v. Potter, 63 Ill. 537.
    If a testator gives by his will, to a judicial officer, a power of appointment, which the law does not give or sanction, the reference to the official character will be regarded as descriptive of the person who is to execute the power. Shaw v. Paine, 12 Allen, 290.
    The author of a trust has the absolute right to create the power to appoint new trustees. Hill on Trustees, 249; Perry on Trusts, secs. 287—289; Golder v. Bressler, 105 Ill. 431.
    The county court was the proper donee of the power. Morrison v. Kelly, 22 Ill. 622,
    Mr. J. S. Cochrane, also for the appellant.

      Messrs. Wilson & Moore, for the appellees:
    The will" attempted to confer the power of appointing a trustee, upon the county court of Cook county, and the appointment was in fact made by such court. No reference is made in the will to the judge of the court, and the bond is required to be filed with the “clerk of said court.”
    The county court had no jurisdiction by statute over the subject matter of the appointment of a trustee, and such jurisdiction could not be conferred by will. Leigh v. Mason, 1 Scam. 249; Williams v. Blankenship, 12 Ill. 122; Green v. Rogers, 4 Gilm. 131; Peak v. People, 71 Ill. 278; Busman v. Peona, 16 id. 484; People v. Scates, 3 Scam. 351; Fleischman v. Walker, 91 Ill. 318; McKay v. Allen, 36 id. 429; Telegraph Co. v. National Bank, 74 id. 217.
    If the will shall be construed as confirming the power of appointment upon the judge of the county court, as an individual, then the appointment was void for want of notice of the application for such appointment, upon the minors claiming antinterest under the will.
    Messrs. Dupes, Judah & Willard, for the appellees the Marshes.
    Mr. William 0. Wilson, and Mr. David L. Zook, for the appellee Edwin Sherman, in addition to various points embraced in the briefs of the other appellees’ counsel, made the following points among others:
    Behind all acts of a court there must be power in the court conferred by law, without which they are void. Thomas v. People, 107 Ill. 525; Monroe v. People, 102 id. 411.
    Jurisdiction which a court does not possess by law can not be conferred by consent. Central Bank of Georgia v. Gibson, 11 Ga. 453; Dodson v. Scraggs, 47 Mo. 285; Jeffries v. Harbin, 20 Ala. 387; Chapman v. Morgan, 2 Greene, (Iowa,) 374; Randolph County v. Ralls, 18 Ill. 26; Lunt v. Mason, 1 Scam. 249; Shato v. Paine, 12 Allen, 293; Peak v. People, 71 Ill. 178; Monroe County v. Budley, 51 Barb. 493.
    Consent can not confer jurisdiction, and the rule applies as well to consent which creates a tribunal as to that which submits a subject matter to a subsisting tribunal which is an utter stranger to it. Germound v. People, 1 Hill, 344.
    Jurisdiction can not be extended by contract. Beach v. Nixon, 5 Selden, 35; Lindsey v. McClelland, 1 Bibb, 262; Bents v. Graves, 3 McCord, 280; Folly v. People, Breese, 31.
    When the court has no jurisdiction of the subject matter, appearance will not heal the defect. Burckle v. Echhart, 3 N. Y. 133.
    No officer can acquire jurisdiction by deciding that he has it. In all such cases every officer, whether judicial or ministerial, decides at his peril. Pursser v. Secor, 5 Barb. 607; Harrington v. People, 6 id. 607.
    When the mode of executing a power is not defined, it may be executed by a deed, a will, or simple writing. But no power-can be executed except by some instrument in writing, which would be sufficient in law to pass the estate or interest intended to pass under the power, if the person executing the power were the real owner. 4 Kent’s Com. (12th ed.) 331-351.
   Mr. Justice Magruder

delivered the opinion of the Court:

The appellee, Edwin Sherman, filed a bill in the circuit court of Cook county against appellant for the removal of the latter from the position of trustee of the estate of Francis G. Sherman, deceased, and for the appointment of a new trustee in his place. Appellant had filed a bill in the Superior Court •of Cook county against appellees, for the construction of certain provisions of the will of Francis G. Sherman, deceased. The suit in the Superior Court was transferred, by agreement, to the circuit court, and the two causes were consolidated and heard together. The property, which is the subject of the trust, is described as lots 7 and 8 in block 34 in the original town (now city) of Chicago, and is known, as the Sherman House, a hotel in that city. All the heirs and devisees of Francis C. Sherman, and the holders of incumbrances upon the property, and the heirs of George Taylor, a former trustee, now deceased, are parties to the proceedings. The circuit court rendered a decree, removing appellant, and appointing one Hugh A. White, as trustee of the estate. This decree was affirmed by the Apjiellate Court, and from such- judgment of affirmance appellant prosecutes his appeal to this court.

Francis C. Sherman died on November 7, 1870, owning the Sherman House property, and leaving a will, dated September 14, 1867, and a codicil thereto, dated July 19, 1869, both of fvhich were admitted to probate in the county court of Cook county on November 15, 1870. The will, after devising the said property to Joshua L. Marsh, of Chicago, “as trustee, and his successors forever, ” contains, among others, .the following provision: “In case of the death, resignation, refusal or inability to act of said trustee, I hereby direct that a new trustee be appointed by the county court of said county, upon the application of any person interested, and the notice to all other persons interested, with all the powers of said original trustee; and my trustee, before entering upon the duties of his trusteeship, shall enter into a bond with good and sufficient security, to be approved by said court, in such sum as said court may determine, payable to some one of my heirs for the benefit of all concerned, conditioned for the faithful performance of the duties of his trust, and file the same in the office of the clerk of said court. ” Marsh acted, as trustee, until some time in 1875 and then resigned. On July 23, 1875, the county court appointed one George Taylor to the trusteeship, as successor to Marsh. Taylor served until August 15, 1881, when he died.

On September 2, 1881, Martha S. Marsh, a daughter of the testator and one of the appellees herein, filed her petition in the county court of Cook county, asking for the appointment of a trustee, as successor to Taylor, under tfie terms of the will, and praying for such other and further relief, as may seem meet, and for a summons in chancery directed to the sheriff, requiring him to serve the defendants therein named, which he did. The adult defendants appeared by •counsel, and a guardian ad litem was appointed for the minors. •On October 15, 1881, the county court entered an order, in said proceeding, finding, that all the material allegations in the petition were true, and further ordering as follows: “It is therefore ordered, adjudged and decreed that the prayer of the bill of complaint be, and the same is hereby, granted, and that Henry W. Leman be, and he is hereby, appointed as successor in trust to said George Taylor, deceased, to take ■charge of, manage and control said Sherman House property, with all the powers given and conferred by said last will and testament and codicil of said Francis Cornwall Sherman, to said original trustee, Joshua L. Marsh; and that the title to said property be, and is hereby, vested in said Henry W. Leman, as such successor in trust, for the purposes of said trusteeship, but saving all existing liens and incumbrances. ” Appellant, who is the Henry W. Leman, named in the above ■order, gave bond, and has since acted, as Taylor’s successor.

The bill for the removal of appellant proceeds upon three . grounds: First, that his management, as trustee, has not been prudent and to the advantage of the estate; second, that disagreements have sprung up between him and the cestuis que ■trustent, which have given rise to dislike and ill-feeling, and make his retention, in the office of trustee, inadvisable; third, that the power of appointment, conferred upon the county court by the will, and the exercise of that power, by the county court, in the appointment of appellant, in the manner already indicated, are illegal and void.

As to the first ground, the circuit court found, that appellant had managed the estate honestly and with success, and we think, that the finding is warranted by the evidence. As to the secolid ground, there are authorities, which hold, that, where such a disagreement has arisen between a trustee and his cestui que trust,.as to make their transaction of business with-each other unpleasant, a court of chancery may, in the exercise of a reasonable discretion, remove the trustee, even though his conduct, in the discharge of liis duties, has been without fault. We do not deem it necessary, however, • to discuss this feature of the case, and express no opinion in reference to it. The decree of the circuit court, removing appellant, was based upon the third ground, and we think that court very properly held, that appellant’s appointment by the county court was void.

The testator, undoubtedly, intended to confer the power of appointing a successor to the trustee, named by him, upon the county court, as organized .when his will was made. At that time, the county court had jurisdiction in all matters of probate and the settlement of estates of deceased persons. It was, unquestionably, his intention to authorize the appointment to be made by the same court, in which his will would be admitted to probate, his executors would be qualified, and his estate would be administered upon. Since his death, however, a new probate court has been created in Cook county, and all jurisdiction, in matters of probate, has been taken away from the county court, so called. Appellant’s appointment was made by the county court, as it existed, after its probate jurisdiction was taken from it, and vested in the newly created probate court. It is very evident, therefore, that, however necessary it may be to consider and give effect to the actual intention of the testator in the interpretation of his will, it was never really his intention to_ confer the power of appointment upon the county court, as it was organized, when the order of October 15, 1881, was entered.

Independently, however, of this consideration, neither the county court, which existed, when the testator made his will and at the time of his death, nor the county court, which assumed to make appellant the trustee of the estate, could lawfully exercise the power, conferred by this will.

It is sought to uphold the power, on the ground, that it was conferred upon the judge of the court, and not upon the court itself. Where it is manifestly the intention of the testator to name the particular individual, who holds the office of judge, as the donee of the power, his designation as judge of a court, will be regarded, as mere descriptio persona, and the power will be sustained, as vested in the man, and not in the office. No such construction, however, can be given to the language of the will, now under consideration. The power of appointment was intended to be conferred upon the county court of Cook county, as a tribunal. Such is the plain import of the words used. “I direct * * * that a new trustee be appointed by the county court of said county, ” not by the judge of the county court. “My trustee * * * shall enter into a bond with * * * security, to be approved by said court, in such sum as said court may determine. ” Surely, the action, here contemplated, is that of a court, engaged in the performance of its judicial duties. Moreover, the will directs, that the trustee shall file his bond “in the office of the clerk of said court. ” The clerk of a court is the official of a tribunal, acting in a judicial capacity and exercising judicial functions. , He can not be said to be the clerk of the individual, who happens, for the time being, to have a seat on the bench.

The power, thus attempted to be conferred upon the county court, as a judicial tribunal, is the power to appoint a new trustee of an estate, upon the death, resignation, refusal or inability to act, of the original trustee, named in the will. Under the judiciary system of this State, the only court, which has any jurisdiction to exercise the power, here indicated, is a court of chancery. The county court of Cook county has no chancery jurisdiction, and had none, when the order of October 15, 1881, was entered. By an act of the legislature, passed April 29, 1881, in force July 1, 1881, an attempt was made to give county courts, in counties, in which probate courts were or might be established, concurrent jurisdiction with the circuit courts, “in all eases at law and in equity, ” etc., and we held this act to be unconsitutional in Klokke v. Dodge, 103 Ill. 125.

If, under the constitution and the law, the county court of Cook county had no chancery jurisdiction, it is quite certain, that this testator could not confer such a jurisdiction upon it by a provision in his will. It would hardly seem to be necessary to quote authority for such a proposition, but, if authority is needed, it is at hand. In Shaw v. Paine, 12 Allen, 293, the Supreme Court of Massachusetts say: “It is undoubtedly competent for a testator to provide by his will for the substitution of new trustees in case of a vacancy -occurring among those first appointed, as much as it is in his power to create the trust; and he may do this directly, by naming the person to be substituted, or by giving the power of appointment. When the power of appointment given by the will is duly exercised, the trustees take under the will, and derive the powers from the act of the testator. On the other hand, it is equally certain that it is not in the power of the testator to confer upon a judicial tribunal a jurisdiction which is not conferred by law. ”

In McCleary v. McLain, 2 Ohio St. 368, it is also said: “If the performance of the trust, or execution of the powers, involves the employment of another agency not having the capacity for its execution, the power itself can not be effective. In any proper form one may delegate to another complete authority to regulate, control, dispose of, receive and receipt for his property, of whatever description; but he can not, by any form of commision, whatever the powers of the agent may be, confer upon a justice of the peace, or other court of limited jurisdiction, a power not conferred by the statute. Whilst any competent person may, by his own act or contract, dispose of his own rights and property at his discretion, yet they can not be dis2Dosed of by the judgment of a court having ■no jurisdiction over the subject.”

An examination of the 2>roceedings in the county court, which resulted in the appointment of a2pellant, will show, that the judge of that court did not act nor intend to act, as .an individual donee of the power, but that the machinery of his court, as a judicial tribunal, was brought into 02>eration, for the purpose of accomplishing the desired result. The act of the legislature, which has been alluded to, had then but recently b.een passed, and the county court was, at that time, supposed to be lawfully 2>ossessed of the equity jurisdiction, conferred by that act. The petition,-which was filed, praying for appellant’s ap23ointment, as trustee, is called, in the final order, a “bill of complaint.” The summons issued in the case directs the sheriff to summon the defendants “to answer unto Martha" S. Marsh in her certain petition filed in said court on the chancery side thereof.” Besides the appointment of a guardian ad litem and the taking of a default against certain defendants, who failed to answer, a final order was entered, which not only appoints apqjellant successor in trust to Taylor, but actually decrees, that the title to the property be vested in him. All the steps, thus taken, bear upon their face the unmistakable features of a chancery proceeding, and the county court thereby attempted to exercise the functions and assume the jurisdiction of a court of chancery. Consequently, its action was void, and its appointment of appellant to the vacant trusteeship can not stand.

Inasmuch as the will could not and did not confer any jurisdiction upon the county court to appoint a successor to the original trustee, the will must be regarded, as having failed to make any provision for the appointment of such successor. It, therefore, follows, that the aid of the circuit court, sitting as a court of chancery, was properly invoked, for the purpose of appointing a trustee in the place of appellant, when removed; and it was a matter, which rested in the sound discretion of the chancellor, whether he should select appellant, or some other person to act, as trustee.

The ease of Morrison v. Kelly, 22 Ill. 610, is quoted as authority for the position, that the power of appointment, now under consideration, was properly vested in the county court. The language of the opinion, in that case, which states, that “a grantor, conveying to a trustee, may confer * * * upon any court of record, the power to appoint a trustee, in the event of the death of the trustee, named in the deed, ” must be construed with reference to the facts of the case, and, when so construed, will be found to be limited to “any court of record, ” which is vested by law with jurisdiction to act in the premises. In that case, the court, upon which the power to appoint a new trustee was conferred, was “the court of chancery of the judicial district or circuit, in which LaSalle county should then be situated.” It will, thus, be observed, that the court, there selected as the donee of the power, was a court having jurisdiction, under the law, to perform the functions required of it. Again, by. the terms e of the deed ,in that case, the court of chancery itself was to execute the trust; the estate was vested in the court; the court was authorized to exercise the same powers, as were exercised by the original trustee, before his death; the mode of performing the trusts was to be such, as the court should order or decree. It was, accordingly, there held, that the jurisdiction of the court to appoint a new trustee did not depend upon its acquiring jurisdiction over the heirs and legal representatives of the deceased trustee. ° That case merely, decided, that a court, having jurisdiction of the subject matter, under the law, could, without getting jurisdiction of the heirs of the deceased trustee by process, appoint a new trustee, where the deed, creating the trust and fixing its terms and conditions, provided, that the court should do so. The power of a court having no jurisdiction over the subject matter, was not involved or discussed.

The decree of the circuit court fully protects the rights of the mortgagees and other parties, who have dealt with appellant, as acting trustee, and the decree, in that respect, is approved by this court.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.'


text:
    John P. Pynchon, use, etc. v. Albert M. Day et al.

      Filed at Ottawa May 15, 1886.

    1. Production op books op account—rights of parties to a suit— extent and limit of the right of inspection. The statute authorizes the court, upon cause shown, and proper notice, to require either party to a suit to produce hooks or writings in his possession or power which contain evidence pertinent to the issue; but the court will not compel a party to submit for inspection his books of accounts with other persons not parties to the suit, when it is not made to appear that they contain evidence pertinent to the issues.
    2. Where a party is required to produce his books of account for inspection, he will have leave to seal up and conceal all such parts of them as, according to his affidavit, previously made and filed, do not relate to the matters in question.
    3. Prior to the trial of an action for the recovery of moneys placed in defendant’s hands by the plaintiff, as margins in the purchase and sale of stocks by the defendant, as agent of plaintiff, the latter made a motion, supported by affidavit, for an order compelling the defendant to submit his books of account during the time of the dealing between the parties, to the plaintiff's inspection, etc. The court denied the motion, but made an order, it appearing that all the accounts between the parties were embraced in a journal and ledger of defendant, to place them in the possession of the clerk of the court, and limited the inspection to certain pages containing the accounts involved, and gave the defendant liberty to seal up the remaining parts; and it appearing that the journal entries were so intermingled with other transactions as that an inspection of them would expose such outside matters, it was ordered that defendant present in court a verbatim copy of all the journal entries of all matters between the parties, giving the page where entered, such copy to be verified by affidavit, and the certificate of the clerk of the court, upon an actual examination and comparison, provided the plaintiff should so request: Held, that there was no error in the ruling of the court.
    4. Settlement of accounts—what to he so regarded. Where a plaintiff receives, at the end of each month, a statement from the defendant, of his account, and at the close of the dealings accepts a check of defendant as the payment of the balance of the account, making at no time any complaint of the accounts, or intimating any mistakes or incorrectness in the several statements, the acceptance of the check must be taken as an adjustment of the account between the parties.
    5. Pbactice—directing“ what the verdict shall he. Where there is no evidence given tending to show a cause of action, so that a verdict for the plaintiff for any amount would have no evidence in its support, and would be set aside, on motion, without hesitation, the court may properly instruct the'jury to find for the defendant.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Sidney Smith, Judge, presiding.
    Mr. Thomas J. Suthebland, for the appellant:
    The court should have granted the motion of the plaintiff for the production and inspection of books. The relation of the parties,—that of principal and agent,—is a sacred one, so much so that the law exacts from the agent the most scrupulous obedience to the principal’s will, and perfect good faith and fair dealing, and will tolerate no adverse interest in the agent. Ewell’s Evans on Agency, 558, 361, 369, 461; Francis v. Kerber, 85 Ill. 190; Greenby v. Webb, 44 Mo. 444; Cook v. Berlin Mills Co. 43 Wis. 433; Ruckman v. Burgholtz, 37 N. J. L. 437; Bain v. Brown, 56 N. Y. 285; Tynes v.
      Grimstead, 1 Tenn. Ch. 508; Valtz v. Blockman, 64 N. Y. 646; Moody v. Smith, 70 Ill. 598; Andrews v. Life Ins. Co. 92 N. Y. 596.
    The principal has a common interest in the books and papers of his agent, and is entitled to a full inspection of them, wherein anything is contained throwing light upon 'the agent’s transactions for him. 1 Hoffman’s Ch. Pr. 310; Cockburn v. Union Bank, 13 La. Ann. 289; Brevoort v. Warner, 8 How. Pr. 325.
    The defendants were bound to keep proper books of ae•eount, and memoranda giving a clear exposition of all their "business for and with the plaintiff, for such books are kept not • only for the agent’s benefit, but for the principal’s. Ewell’s Evans on Agency, 358, and notes 361, 369; Oldershaw v. Knowles, 101 Ill. 117; Peterson v. Poignard, 8 B. Mon. 309.
    If the books do not show everything, and are not well kept, 'that fact alone, which appears by a general inspection, is ■ evidence against the agent, and if they show only that, they 'therein contain “evidence pertinent to the issue.” Linen Co. v. Hough, 97 Ill. 629; Lowenthal v. McCormick, 101 id. 150.
    As to the right to have books produced for inspection, and ■the proper practice governing, we refer to the following other authorities: Garrick v. Chamberlain, 97 Ill. 629; Lefferts v. Brampton, 24 How. 257; Heinsler v. Friedman, 2 Pars. Sel. Cases, 274; United States v. Babcock, 3 Dillon, 566; Ex parte Brown, 72 Mo. 83; Litting v. Easton, 18 C. B. 643; Field v. Zemanski, 9 Bradw. 479; Powers v. Elmerdorf, 4 How. Pr. 59; 3 Greenleaf on Evidence, sec. 304; Exchange Bank v. Montieth, 4 How. Pr. 280; Low v. Graydon, 14 Abb. Pr. 443 ; Thompson v. Railway Co. 9 Abb. (N. S.) 212; Morrison v. Sturgis, 26 How. Pr. 178; Central Nat. Bank v. Clark, 34 N. Y. 490; Central Nat. Bank v. White, 37 N. Y. 305; Livingston v. Curtis, 12 Hun, 124.
    The court below erred in withdrawing from the jury the • consideration of the facts in the case. Railroad Co. v. Sykes,
      96 Ill. 176; Holmes v. Railroad Co. 94 id. 444; Frazer v. Howe, 106 id. 173; Stevens v. Sngder, 8 Bradw. 336.
    Messrs. Paddock & Alois, and Mr. Frederic Ullmann, for the appellees.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This is an appeal from a judgment of affirmance by the Appellate Court for the First District, of a judgment of the Superior Court of Cook county, in favor of the defendants, in an action of assumpsit, brought by Pynchon, against Day and another, for the recovery of moneys placed in the hands of the latter by the former, as margins, or security, in the purchase and sale of stocks and bonds by the defendants, as. the agents and brokers of the plaintiff.

Two certain rulings of the Superior Court, on motions made by the plaintiff, prior to the trial, for the production and examination of books, are assigned for error. The first motion, supported by affidavit, was for an order on the defendants to produce before the court, for the examination and inspection of the plaintiff and his attorney, and that they be allowed to inspect the same, the books of account kept by defendants during their dealings with the plaintiff, showing all their dealings in stocks and bonds during that period,, and the names of the different persons for whom defendants, during that period, bought and sold stocks and bonds of the kind claimed to have been bought and sold for plaintiff, the amount and kind thereof, and the persons from and to whom they were bought and sold. The court denied the motion, but of its own motion made an order, that, it appearing to-the court that all the accounts relating to the transactions between the plaintiff and defendants were embraced in a journal and ledger of defendants, it was ordered that those books be produced in court and placed in the possession of the clerk of the court; and it further appearing that all of the ledger entries pertinent. and proper to be examined by the plaintiff were to be found upon five named pages, it was ordered that the examination and inspection by the plaintiff he restricted to those pages, and that the defendants be at liberty to seal up the remaining portions of the ledger; and it appearing that the journal entries of said transactions were'so intermingled upon each page with entries of transactions between the defendants and persons other than the plaintiff, that an inspection of those pages would necessarily expose such outside transactions, it was ordered that the defendants be permitted to present in court, for the use of the plaintiff, and in lieu of inspection of original entries, a verbatim copy of all the journal entries of all matters and transactions between plaintiff and defendants, showing pages where entered,—the copy to be verified by the affidavit of the defendants, or one of them, and to be further verified by certificate of the clerk of the court, upon actual examination and comparison with the original entries, provided the plaintiff or his attorney should so request. A subsequent motion was made by the plaintiff for an order on the defendants to produce before the court, for the like examination and inspection of plaintiff and his attorney, and that they be allowed to inspect the same, all books of account kept by the defendants containing all accounts of the purchases and sales of stocks like those claimed to have been bought and sold by the defendants, which they made through their agents, Lapsley, Field & Go., in New York, and during the period of defendants’ dealings with the plaintiff; also, all of the account of defendants with said firm of Lapsley, Field & Go. This motion the court refused to grant, hut of its own motion did order as follows: that the account book containing the account of the defendants with Lapsley, Field & Co., having been produced in court, and it appearing, by affidavit and 'by an inspection of said account, that it contains items and entries relating to transactions between the defendants and parties other than the plaintiff, and in nowise connected with the transactions between plaintiff and defendants, it was ordered that the defendants, under the direction of the clerk, of the court, be at liberty to seal or cover the names of such parties other than the plaintiff, as they appear in said account, and that thereupon the plaintiff, or his attorney, have full liberty to inspect said entire account, except the names so-sealed or covered, and to take copies thereof.

The provision of our statute is: “The several courts shall have power, in any action, pending before them, upon notice, and good and sufficient cause shown, and reasonable notice-thereof given, to require the parties, or either of them, to-produce books or writings in their possession or power, which contain evidence pertinent to the issue.” There was here-full liberty given for the examination and inspection of all accounts pertaining to transactions between plaintiff and the-defendants, the refusal only being to allow the examination and inspection of the accounts which appellees kept with their other customers. Certainly, ordinarily, the accounts with other persons would be entirely immaterial, and would not contain evidence pertinent to the issue; but in this special case appellant’s counsel contends that it would be otherwise,, and that appellant’s stock dealings with other persons would, be material, and contain evidence pertinent to the issue. An affidavit was submitted, to the effect that if appellees’ books were properly kept, it could be verified or disproved by them whether thé statements in the personal account of plaintiff were true or not; that in order thereto, it would be necessary to inspect appellees’ accounts with all their customers during the period of appellees’ dealing with appellant, and that certain necessary facts should be shown by the books, among them being the total amounts of stocks, like those bought and sold for appellant, which appellees, on each day during the time of such dealing, bought and sold, with names of persons from and to whom the same were bought and sold, and the numbers and amounts of the several certificates for such stock. It was made to appear that the stocks in question, as is the usage with stock brokers in Chicago, were bought and sold by appellees, through their agents in New York, on the New York exchange; that the books of appellees do not, and the books of stock brokers in Chicago, as customarily kept, would not, show some of the said facts said to be needful for-testing the accuracy of appellant’s personal account, and that they can only be shown by the books of the New York correspondent. It seems, therefore, that in this case the inspection of appellees’ accounts with other persons would not serve the purpose of determining as to the correctness of appellant’s account, and that for the court to have gone-further than it did, in its ruling, and to the extent asked by appellant, would have been but a needless exposure of appellees’ transactions with their other customers.

The court’s action was in conformity with the authorized practice in respect of the production of books generally. In 3 Greenleaf on Evidence, sec. 301, it is laid down: “And where books are to be produced, the defendant will have leave-to seal up and conceal all such parts of them as, according to-his affidavit previously made and filed, do not -relate to the matters in question. ” In Diaz v. Merrill, 2 Paige, 494, the court say: “While the course of judicial investigation frequently requires a party to produce parts of his books in which the adverse party has an interest, for the inspection of the latter, it may frequently be of great importance to the former that his accounts and transactions with other persons, should not be exposed to the examination of strangers, and particularly of an enraged adversary. Where his books are subjected to inspection, it is the uniform practice of the court to permit a party to seal up those parts which do not relate to the subject of litigation.” In Girard v. Penswick, 1 Swanst. 533, an agent had books of account which contained some accounts relating to his agency, and others relating to his own private business, and the order was, that the defendant should leave the books with his clerk in court, sealing up those parts which did not concern the'plaintiff, and pledging himself by oath that he had sealed up those parts only.

We can not say that there was anything erroneous in the court’s mode of exercise of its power in respect of the production of books for examination and inspection.

Upon the plaintiff resting his ease, the court, on motion of the defendants’ attorneys, instructed the jury to find a verdict for the defendants, which the jury did. This is assigned for error. The evidence for the plaintiff was that of the witness Day, one of the defendants, called for the plaintiff, who testified to the amount received from the plaintiff as $19,166.99. He was followed by the plaintiff, called on his own behalf, who testified that of the money he had paid to defendants, he had received from them $9011.01; that what they owed him, the difference between the amount paid them and the amount received, was $10,390.98. On cross-examination he stated that he had advanced to the defendants on stock transactions, $19,000 and something, that he had got back $9011.01, so that his losses were $10,398; that defendants had rendered him statements of the purchase and sale of stocks as they were severally made, and monthly statements of account, each month; that when the account was finally closed, there was a balance shown to be due plaintiff, by defendants’ books, somewhere about $2511.01; that defendants gave him the two checks shown him, for the payment of $2511.01, dated, respectively, October 1,1881, and October 5, 1881, to balance the account, they claiming it was all they owed him; that the account of defendants was not before him at the time. As thus appears, the plaintiff stated that the difference between what he had advanced to the defendants and what he had received back, was his losses; that he received a statemént of every purchase and sale as it was made, and a monthly statement of account, each month; that at the close of the dealing he received a check as the payment to him of the balance of the account. With all this, as not being correct, no complaint or sign of dissatisfaction ever appeared, nor does now appear, the plaintiff himself testifying ; nor is there the intimation of any mistake or incorrectness. Surely, under such circumstances, the acceptance of the check as the payment of the balance due upon the account, must be taken as an adjustment of it.

There was not evidence tending to show a cause of action. To have rendered a verdict for the plaintiff for any amount, would have been mere guess work,—there would have been no evidence to base it upon. Any verdict for the plaintiff must have been, on motion, instantly set aside by the court, without hesitation.

Some other points have been made by appellant’s counsel, which we have considered, but regard as without merit.

Finding no error in the record, the judgment of the Appellate Court must be affirmed.

Judgment affirmed.


author: Mr. Justice Scot-t

text:
    Marshall Field v. Levi Z. Leiter.

      Filed at Ottawa May 15, 1886.

    1. Party wall—what will constitute a parly wall—a contract construed. A and B owned á city lot lying north and south 189 feet,—A the west half, and B the east half. A had a five-story building upon his part of the lot, 100 feet deep, the east wall of which, twenty inches thick, was on the division line, so that the center of the wall was on the line dividing the lot. B, being desirous of erecting a ten-story building on the east half of the lot, of greater depth than the other building, a written agreement was entered into, giving B the right, in constructing his building, to use for that purpose, as a party wall, with the right to' add to the height thereof, as much of A’s east wall as B might desire, the latter agreeing to strengthen the same to prevent any injury to A, and it was covenanted that A should have the right to use, as-a party wall, the additional height, by paying what was just and equitable-therefor: Held, that by the agreement the east wall of A’s building became a. party wall, and that the extension of that wall for the new building, and the addition to the height of the old wall when completed, would also become a. party wall, in the strictest sense, with the usual easement of support.
    2. Same—rights of adjacent proprietors, as to the use of á party wall. The law will treat a party wall as a structure for the common benefit and. convenience of both the tenements it separates, and either party will bo allowed to make any use of. it he may desire, either by deepening the foundations or increasing the height, so far as it can be done without injury to-■the other.

      1 . 3. Same—contract construed—as to strengthening wall and foundation. The owner of a five-story building entered into a written agreement with tho owner of an adjoining lot on the east, whereby the east wall of the building then on the dividing line, should be a party wall. It was provided therein that the owner of the lot on the east might add to the height of such wall, making it high enough for a ten-story building, he agreeing to strengthen such wall and the foundations thereof, “by making such additions thereto-upon the east side thereof as may be required to prevent any and all injury”' to the other party’s building: Held, that the words, “upon the east side thereof, ” applied only to the wall,—not to the foundation of such wall,— and that in strengthening the foundation, the party doing so was not confined to his-own premises east of the party wall, but had a right to strengthen it by increasing the base, in widthj on both sides of the wall.
    I. Contract—rule of construction. It is the duty of courts, in construing all written instruments, whether specialties, simple contracts, or wills,, when practicable to do so, to discover and give effect to the intention of the parties, so that performance of the contract or other instrument may be enforced according to the sense in which it was mutually understood at the time it was made.
    5. Such construction will be adopted, when it can consistently be done, as will render the contract or other instrument capable of execution, rather than one that will render it inoperative, and regard should also be had to-attendant circumstances, in construing written instruments.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. Thomas A. Moban, Judge, presiding.

      The original bill in this case was brought by Levi Z. Leiter, against Marshall Field, and is for relief and for an injunction. After answering the' original bill, defendant filed a cross-bill, in which he also asked for affirmative relief, and for an injunction, concerning the matters involved. On the hearing in the circuit court, the cross-bill of defendant was dismissed, and relief decreed substantially as asked for in the original bill. That decree was affirmed in the Appellate Court for the First District, and defendant brings the case to this court on his further appeal.
    Messrs. Williams & Thompson, and Mr. M: W. Fuller, for the appellant:
    The right to build a new wall or to raise and enlarge an old one upon or near the line between two proprietors, carries with it the right of entry, for the purpose of laying the necessary foundations.
    Field has authority to use Leiter’s wall as a party wall, and to increase the height to meet the requirements of a ten-story building. This necessitates the broadening of the old foundation, or the construction of a new one, and the right of entry and support for that purpose is an indispensable part of the arrangement. The only limitation to this right is attached to the agreement of Field to prevent injury to Leiter’s building. The mode of preventing injury and damage to the building is partially pointed out, but the right to construct the wall remains' absolute and unqualified.
    The right to increase the height necessarily involved the right to support such increase; and where the character of the soil requires a lateral extension, and a perpendicular extension is insufficient for the purpose, it is beyond question that one right- would follow equally as well as the other. Brooks v. Curtis, 50 N. Y. 639; Dananhauer v. Devine, 51 Texas, 480; Partridge v. Gilbert, 15 N. Y. 601; Matts v. Hawkins, 5 Taunt. 20.

      The party enlarging or repairing the party wall, to a certain extent, acts at his peril, and is liable for any damage that may be caused to the adjoining tenement of his neighbor by his negligence in performing the work; and he probably would be liable for any injury caused from any enlargement or change in the wall which was not a matter of necessity for the preservation of the wall itself. Eno v. Del Vecchio, 4 Duer, 65.
    A grant, as of an easement, carries with it whatever is necessary for the use of the thing granted, and implies a license to enter on the premises of the grantor for use and repair. 1 Saund. 321; Hinchcliffe v. Earl Kimoul, Bingham’s N. C. 13; Standard Bank v. Stokes, L. R. 9 Ch. D. 68; Colbeck v. Gundlers Co. L. R. 1 Q. B. D. 234; Partridge v. Gilbert, 15 N. Y. 601; Washburn on Easements, 30; Shep. Touch. 89; Plowd. Com. 16 a.
    Messrs. Isham & Lincoln, for the appellee:
    A wall built in common between two properties effects no transfer of land when the amount contributed by each is known.
    In the absence of contract, ownership of wall 'ensues according to title of land on which it stands.
    When two persons are owners in severalty of the moieties of a party wall with cross rights of easement, neither can pull down his own portion of the wall without being liable for disturbing the rights of the other. Hunt’s Law of Boundaries, 113-116; Tyler’s Law of Boundaries, 117; Wiltshire v. Sidford, 8 B. & C. 258; Cubitt v. Porter, id. 262.
    As to the relative rights of the proprietors of a wall owned in common, and the mutual servitudes of their properties, see Eno v. Del Vecchio, 4 Duer, 65; Brooks v. Curtis, 50 N. Y. 641.
    The agreement is expressly confined in terms to the use as party wall of the existing wall solely, and to its extension upward. License to use “so much of the wall already built,” precludes the idea of more wall or of any land.
    This is not a contract for the building of a party wall for a ten-story building, and no implication involves the authority for such an invasion as has been made to take.footing for such a wall.
   Mr. Justice Scot-t

delivered the opinion of the Court:

, Although this case has been elaborately argued by the respective counsel, it is thought no extended discussion is necessary to an understanding of the decision to be rendered. The parties are owners of contiguous properties, each extending southward from Monroe street a distance of one hundred and eighty-nine feet, and the issue made by the pleadings is as to the right of defendant to strengthen the foundations of an existing wall on the line separating the land owned by the respective parties, so that it may support an additional wall, which, it is conceded, defendant, Field, has the right to erect, under the contract of the 28th day of April, 1884. The contention between the parties relates exclusively as to the mode of strengthening the foundation of the existing wall upon the division line at the time of the making of the contract.

Much light will be shed upon the subject of inquiry by reference to the previous condition of the property before defendant became the owner of that part which he now proposes to improve. In 1878, complainant, who was then, as now, the owner of the property west of the division line where the controversy exists, erected thereon a five-story building. The east wall extends south from Monroe street about one hundred feet, and is about twenty inches wide, and is built as one would build a party wall, half of its thickness on his own land and half on the land then owned by defendant’s grantor. It is not claimed that complainant had any party wall contract with the adjoining owner prior to erecting the wall as was done, but it is alleged, as no doubt the truth is, that the adjoining owner made no objection to the wall being erected in the manner as is usual, with the party walls partly on its lands, and with the usual support therefrom. After this wall had been thus erected by complainant, the east half of the lot was purchased by defendant. The evidence tends to show the wall, erected by complainant partly on his own land and partly on land now owned by defendant, was, no doubt, constructed under.the belief it would be adopted by the adjoining owner as a party wall. It had its centre line very near over the line dividing the respective properties, with the usual support on either side of the dividing line. But prior to the making of the contract, which will be the subject of consideration further on, it had not been agreed upon by the adjoining proprietors as a party wall. The suggestion of counsel might be adopted, that before that time “the wall was not a party wall, in any sense. ” But whether it was or not, is a matter of no consequence, in the view that will be taken of the case. In 1884, defendant purposed to build upon his property, and wished, as counsel expresses it, to use the existing wall, and to provide for a new party wall along the remaining part of the dividing line. Accordingly, the contract of the 28th of April was entered into and mutually signed. The agreement is between Levi Z. Leiter, of the first part, and Marshall Field, of the second part, and after reciting that the parties to the contract are the, owners, one of the east half and the other of the west half of lot 3; that complainant had heretofore erected upon the west half of the lot a brick building, the east wall of wdiich, running back one hundred feet, more or less, from the north line, stands partly upon the east half and partly upon the west half of such lot, and that defendant is about to erect upon the east half of the lot a brick and stone building of about ten stories in height, and is desirous of using a part of the wall of the building owned by complainant, in the construction of his building, and of erecting so much of the west wall of his building as shall ■extend south of said east wall, so that the centre line thereof shall coincide with the dividing line between the east and west halves of such lot, then comes the following paragraph, out of which the principal difficulty in the case arises“Now, therefore, in consideration of the premises, it is hereby covenanted" and agreed between said parties, that the said party of the second part, in constructing his said building upon the east half of said lot 3, may use for that purpose, as a party wall, (with the right to add to the height thereof,) so much of ■the east wall of said Leiter’s building as he may desire, said party of the second part hereby agreeing to strengthen said wall, and the foundations thereof, by making such additions thereto upon the east side thereof as may be required, to prevent any and all injury or damage to said Leiter’s building, by reason of the use of said wall by said Field.”

It is admitted that after the making of this agreement, the existing wall became, by the contract, a party wall, and that the proprietors had the cross-easements, and such other rights as are usually incident to party walls. While this much is conceded, it is insisted no right to add to the height of such party wall existed, otherwise than as such right is given by the contract. The argument then assumes the contract simply confers on defendant a license or privilege to use the existing wall in the construction of his building, but that the added height does not become a party wall, with the usual easements of supports and other party wall rights. This view can hardly be adopted. There is no controversy that the new wall to be erected south of the existing wall on the dividing line, is to be, and will "be when constructed, a party wall, in the strictest sense, and will have the usual «easement of support on either side of the dividing line. Here, then, it is conceded, the original wall erected by complainant became, by the contract, a party wall, and that all of the wall south of the existing wall, to be erected under the contract, is a party wall, with all the incidents of party walls, so that all the wall on the entire line would be confessedly party wall, except the additional height defendant may make to the existing wall. This construction seems unreasonable, and ought not to be adopted unless the contract will bear no other. It would seem the wall must be a “party wall” from, the foundation to the top, or not at all. It is difficult to believe the parties contracted for a party wall for half its height, and that the remaining portion should not be. But the context shows the agreement made was more than a mere license or privilege to use the existing wall. It is seen the contract contains a covenant that complainant shall “have the right to use as a party wall any additional height which shall be added by” defendant “to the east wall” of complainant’s building, upon condition he shall pay therefor “such sum as shall be just and equitable.” This is a covenant for an interest in the wall as a “party wall, ” and that conclusion is strengthened by the further consideration it is provided the agreement shall be construed “as a covenant running with the land.”

Such a covenant would be unusual in a contract for a mere license or privilege. Beading the context, with this clause of the agreement, it is not accurate to say it is a contract for the use as a party wall of the existing wall. It is more than that. It is a contract that when the existing wall shall have been raised, it shall be a party wall,—the additional wall as well as that which had been constructed by complainant. It is said this is not a contract to build a party wall. It is true the contract contains no express undertaking on the part of defendant that he will construct the wall under the agreement, but it is not perceived how that fact militates' against the view the wall shall be a party wall when erected. In this respect there is no difference between the provisions concerning the north end of the line, where the existing wall was standing, and those concerning the south end, where complainant had no building erected. In the latter case, the provision is, defendant may build a party wall, but he was not obligated to do so. All agree, however, that when the south wall shall be erected it will be a party wall. The same provisions apply to the wall to be erected on the north end of the division line. In erecting his building, defendant may use for that purpose, as a party wall, so much of the east wall of complainant’s building as he may desire, “with the right to add to the height thereof. ” Add to what ? Obviously to the height of the party wall. Is it possible that after the party wall is raised up by mutual agreement, only the original wall shall be regarded as a “party wall?” Such a construction is too narrow to be adopted. No one contends that since the making of the contract the existing wall is not a party wall, with all the easements pertaining to party walls. That being so, the express agreement defendant may add to the height of the wall, is equivalent to an express covenant the wall, with its added height, shall be in all its portions a party wall. The right given by the contract to add to the height of what is conceded to be a party wall, necessarily, by implication, gives an easement of support for such wall equally on either side of the line of ownership. One party may not have the benefits of a party wall without subjecting his property to all burdens incident to such walls. The right of support is one of the principal, and at the same time most valuable, rights arising out of the construction of party walls. A very satisfactory statement of the law on this subject is that contained in the opinion of the court in Brooks v. Curtis, 50 N. Y. 639, where it is said, after considering a number of cases, that the “fairer view, and the one generally adopted in legislative provisions on the subject, in this and other countries, is to treat a party wall as a structure for the common benefit and convenience of both of the tenements which it separates, and to permit either party to make any use of it which he may require, either by deepening the foundations or increasing the height, so far as it can be done without injury to the other.” The party making such change is obligated to observe care not to occasion injury to the adjoining owner, but the authorities generally seem to hold that in so far as he can use the party wall in the improvement of his own property without injury to such wall or the adjoining property, there is no good reason why he may not be permitted to do so. The contract between the parties in this case conforms to this view of the law, and harmonizes with it in all essential respects.

But the bill in this case is framed on another view of the meaning of the contract. It is, that in and by the contract it was intended to be, and was, provided, that the wall previously erected by complainant might be used as a party wall, and that in using it defendant might add to the height of such wall, and strengthen the same, and the foundations thereof, by additions made thereto upon the east side thereof, but that no authority was given to defendant to enter upon or appropriate any part of complainant’s land west of the wall, or to put any constructions, buildings or foundations on any part thereof, or interfere with the possession thereof by complainant or his agents. This construction is not warranted even by a literal reading of this clause of the contract, and certainly not by its plain meaning, as gathered from a consideration of the whole instrument. There are a few rules of construction commonly observed in construing all written instruments, whether specialties, simple contracts, or wills. One is, it is the duty of the court, where it is .practicable to do so, to discover and give effect to the intention of the parties, so that performance of the contract or other instrument may be enforced according to the sense in which it was mutually understood at the time it was made, and greater regard is to be had to the clear intent, when" ascertained, than to any particular words which may have been used in the ■expression of that intent. Another rule is, that such construction shall be adopted, if it consistently may be, as will .render such contract or other instrument capable of execution, rather than to render it inoperative. Often, the attendant -circumstances shed much light upon the subject of inquiry, and regard should be had to them in construing written instruments..

Applying these well understood rules, no serious difficulty will be experienced in ascertaining the meaning of that clause of the agreement out of which this controversy arose. It is seen, it provides, first, that the existing wall shall be a “party wall;” second, that additions may be made to its height; third, that such party wall shall be strengthened; and fourth, that its foundations shall also be strengthened. These things were all plainly within the contemplation of the parties, and they undertook to provide for them by their written agreement. All agree the existing wall, after the making of the agreement, became a party wall, and that authority was expressly given to defendant to add to its height. The contract in respect to these things is so clearly written it admits of no construction. 'It is evident, even from a casual reading of the contract, that both parties understood the existing Avail was insufficient to sustain the additional weight it would be subjected to when defendant should add to its height, and that it would become necessary to strengthen it by additions thereto, and accordingly it was provided such additions should be made upon the “east side” of the wall, and not otherwise. So far there is no'disagreement as to the meaning of the contract. Both parties agree the contract obligates defendant to strengthen the foundation of the existing Avail to prevent injury or damage to complainant's building by reason of the use of the Avail as a party wall, but how it should be done is the sole question concerning which there is disagreement. The insistence on the part of complainant is, that the foundation of the existing Avail, which has now become a party wall, with all the easements and incidents pertaining to such walls, can only be strengthened by additions “upon the east side, ”—that it is so written in the agreement, and can not be done otherwise. The position taken seems so obviously erroneous it needs but little illustration. Had this contract been handed up for inspection without the elaborate arguments submitted, it seems improbable it would have occurred to this court it would bear the construction attempted to be given to it, and especially when considered amidst the circumstances where it was made. The foundation which it is provided should be strengthened, is the construction upon which the wall is to rest, and, of course, is beneath the dividing wall. If it is meant to insist the foundation could only be strengthened by extending the existing foundation towards the east, -or, what is the same thing, by additions “upon the east side, ” that would be utterly impracticable, and it is apprehended few men knew better than the parties to this agreement when they entered into it, such a mode of strengthening a foundation would be an impossible undertaking, and no such absurd intention ought to be imputed to them. No possible additions that could be made solely to the east of the existing foundation, would render it reasonably secure or add any considerable strength to it, and no one ventured an opinion to the contrary. The character of the soil at the locality where these buildings are located, is such, it is necessary, when any great weight is to be placed on foundations, they should be spread to considerable width, in order to bear the pressure safely. All the architects examined as witnesses concur in the statement, a heavy wall like the one defendant has the right to construct, can not be supported on a foundation on soil of the character in that locality, unless the centre of the foundation falls beneath the centre of gravity of the wall, and that the inevitable result of a departure from that mode of constructing the foundation, would be the giving away of the walls, and perhaps the ultimate destruction of the buildings. Outside of the testimony of these witnesses, skilled in this department of labor, this is an obvious fact, and is within the knowledge of all persons of any considerable . experience in such matters, and doubtless the agreement to strengthen the foundations of the existing wall to receive the additional weight it was agreed might be placed upon it, was made with a knowledge of this fact, and in reference to it. It is sometimes allowable in construing contracts, and especially if the same are inartificially framed, to transpose the words, to make the meaning more apparent. That may be' done to advantage in this case, so the contract may be read as if it were written, “to strengthen said wall by making such additions thereto on the east side thereof as may be required, and the foundations thereof, to prevent any and all injury or damage to said * * * building by reason of the use of said wall. ” This mode of rendering the contract makes its meaning clearer, and gives effect to all the words employed. The words, “east side, ” have an appropriate application to an upright wall, but they are inapt when applied to a mere foundation upon which the wall is to rest. It is seen, defendant is to strengthen the wall itself by additions upon the east side, and also to strengthen the foundation to prevent any and all injury or damage to complainant’s building by reason of the use of the wall. How .can defendant’s obligation to strengthen the foundation, so as to prevent injury or damage by reason of the use of the party wall, be performed otherwise than in the ordinary and usual way of constructing foundations for party walls, where the adjoining properties shall each furnish the usual support ? If this is not the meaning of the contract in this respect, then it has no meaning. All the testimony is to the effect, the foundation can not be strengthened except by spreading it to a considerable distance, so as to bear the additional pressure, and so that the centre of the foundation will-fall beneath the centre of gravity of the wall. It seems incredible the parties to this agreement would ever have been guilty of the absurdity of providing for strengthening the foundation of the existing wall simply by additions extending, to the east. Either party would have known that would have been utterly ineffectual, and that the foundation could not be strengthened in that way. All contracts or other written instruments should have a reasonable construction, and all subtle distinctions not appreciable by the common mind should be disregarded. These parties did attempt to make a contract for the strengthening of the foundations to the existing wall, to render it sufficient to sustain the additional pressure it was to be subjected to, so as to prevent injury or damage to the buildings, and that contract should not be annulled by mere construction. A party ought not to be permitted to come into a court of conscience to demand equitable relief on the ground the words he used in making a contract, if construed strictly or literally, do not mean anything, and for that reason the contract is impossible of execution. Equity will look through the entire agreement, and discover and give effect to the evident intention of the parties to the contract, and enforce it as they must have understood its provisions when they made it. Disregarding all subtle reasoning as to-the meaning of the words in the relation in which they are used, the common sense meaning of that clause of the agreement which obligates defendant to strengthen the existing foundation to prevent any and all injury or damage to complainant’s building by reason of the use to be made of the-wall as a party wall in the manner it was agreed it might be used, is, that it is to be strengthened in the ordinary and usual mode of constructing party wall foundations in the vicinage, where the adjacent properties is each made to furnish the usual easement of support. Any other construction would render the contract inoperative, and the grant of the use of the existing wall as a party wall, with the right to add to its height, would he a barren and useless grant.

Undoubtedly, the law is, the party making changes in party walls, when not required for mere purpose of repair, acts at his peril, and will be responsible for any damage that may be occasioned. With that qualification, he may use the party wall for the improvement of his own property. Following closely the law on this subject, defendant is obligated by the contract to prevent injury or damage to complainant’s building by reason of the use he is permitted to make of the existing wall. Accordingly, before the original bill was filed, defendant notified complainant that before building further on the foundation of the wall in the front of the lot, he would remove the brick and stone foundations as they were then placed, and which were thought to occasion damage to the basement of complainant’s building, and substitute iron, placing it entirely underneath the floor of the basement of the building. In that way it was thought a foundation could be constructed, of sufficient strength, without damage or injury to complainant’s building, and without interruption to necessary sewerage or plumbing for the use of the same. That offer defendant repeated in his cross-bill, and in strengthening the foundation he should be confined to that mode of doing the work which will occasion the least inconvenience or damage to the building of complainant, by reason of the use of the existing wall.

The original bill should have been dismissed, and the relief which it is indicated in this opinion defendant is entitled to,, should have been decreed to him on his cross-bill. The judgments of the Appellate and circuit courts will be reversed, and the cause remanded to the circuit court for further proceedings conforming to this opinion.

Judgment reversed.