Baugher v. Wilkins

Le Grand, C. J.,

delivered the opinion of this court:

This is an action on the case instituted by the appellants against the appellees and John Glenn. The death of Glenn having been suggested before the trial of the cause, the proceedings were slayed as against him and prosecuted against the others.

The declaration against all the original defendants was as executors, and contained four counts. The substance of these, it is agreed, is correctly stated by the appellees in their brief. {Ante., 35, 36.)

The appellants asked four instructions,- all of which were refused; and the appellees for five instructions, the first of which was admitted to be correct, the second, third- and fourth were granted, and the fifth rejected by the court. The questions presented by the rejection of the appellants’ prayers, and the granting of the second, third and fourth prayers of the appellees, we are now to decide upon the evidence and pleadings in the cause.

At the trial evidence was given that the appellants, together with their deceased partner, Allwine, were the tenants and occupants, as assignees of a parol lease from the testator of the appellees, of warehouse, No. 285, Baltimore street, in the city of Baltimore; and that whilst the tenancy existed, Israel Griffith was the owner of a lot and warehouse adjoining, there being, to a limited extent, a party-wall, common to both warehouses. On the other hand, evidence was given that the wall which was taken down was wholly on the lot of Griffith.

*43 The responsibility of tire appellees is derived principally from a paper signed and sealed by the executors of Joseph Wilkins, deceased, of date the 29th day of April 1851. This paper, after reciting that Israel Griffith was the owner of a lot on the south-east corner of Baltimore and Sharp streets, adjoining a lot of ground belonging to the estate of Joseph Wilkins, deceased, and that there was, to a certain limited extent, between the two lots, and equally on both, a party-wall, gives “permission and privilege unto the said Israel Griffith, his heirs, executors, administrators or assigns, to have the said party-wall raised to the height of four stories, and to have the same continued in a straight line with the present division wall to within three feet of the alley in the rear.” This permission and privilege was given on the following conditions: 1st. That Griffith should furnish the materials and have the work done without any charge to the executors or the estate of Joseph Wilkins. 2nd. That the trustees and executors, or heirs of Joseph Wilkins, or their successors or assigns, should have the privilege of using and building into the party-wall, throughout its extent in length and height, and to the depth of four and a half inches into its breadth. 3rd. That Griffith should have the house standing on Wilkins’ lot, boarded up in such place or places as may be left open by the operations necessary to raise and lengthen the party-wall.

There was a plat of the wall and premises given in evidence by the plaintiffs, on which was designated by the letters C. D, E., that part of the division wall claimed by the plaintiffs to have been partly upon the lot occupied by them as tenants. It was proven that the original improvement did not contemplate the tearing down of this part of the wall, but only to use it in the proposed improvements; that after the main warehouse of Griffith had been taken down, and the excavations made for the cellar, he tore down a portion of the wall C. D. E., which exposed the loft of the back building of the warehouse occupied by Baugher, Fisher & Co., and finding this part of the wall had been built at different times, and was weak and defective, he determined that *44 it. was necessary to tear it down also, and on the last of April, or the first of May, began to take it down, and in doing so opened ami exposed the back-building of the warehouse of Baugher, Fisher & Co.; that the space so opened was boarded up with boards, some of which were lapped and some placed horizontally, and that it remained in this condition for some weeks. It was also proven by the plaintiffs, by a competent witness, that their goods were protected only by a plank partition, and that they were very much confused and piled up, and suffered a great deal from lime and dust; that they could not have been sold within five per cent, of their original value. The appellees gave evidence that the wall, C. D. E., was taken down only because it was found to be weak and defective, that the place was boarded up in the usual way, and every precaution used to prevent the occupants of the next house from being injured thereby, more than was unavoidable. And also, that it was not until after the upper part of the wall, C. D. E., had been taken down, it was discovered there was a necessity for taking it all down. The plaintiffs also gave testimony to show, that by the erection of the new wall, their warehouse was abridged about ten inches in breadth at the part where the old wall, C. D. E., had stood.

The will of Joseph Wilkins, deceased, is notin the record, and we are therefore uninformed of its provisions. But the agreements of the appellees and their deceased associates Glenn and Griffith, describe the former as “trustees” as well as executors. In the absence of the instrument conferring any upon them, we know not what authority they had, as trustees, to deal with the realty of Wilkins’ estate. But, we feel authorized to assume, at least as far as the purposes of this action are concerned, that thejr had power to enter into the stipulations which they did.

Questions were presented in argument which, in our view of the case, it is unnecessary to decide. We content ourselves with the statementuf a few principles sustained by authority and which bear on the decision we give.

• It is undoubtedly true, that a lessee who holds under one *45 who lias a fots in the premises demised, is entitled to the quiet enjoyment of them during his term, and there is an implied covenaut to that effect on the part of the lessor in the case where none is expressed, if the contrary be not stated. But this implication does not extend to indemnity against injury or disturbance from the acts of a mere trespasser. It is confined to the acts of the lessor and all claiming through or under him, or in trust for him and those of persons having lawful title. Archbold's Law of Landlord Sf Tenant, 2T6, marginal. And in the case where the covenant was for quiet, enjoyment, without the let of the lessor and his heirs, and “of all and of every other person or persons whomsoever,” it was holden that these words meant lawful interruptions, and not tile let or interruption of a stranger having no right. Dudley vs. Folliott, 3 Term Rep., 5S4.

The cause of complaint of the appellants grows out of the pulling clown of the wall C. D. E., the building of another in its stead, and, as a consequence, the diminishing the area of their possessions. And these, it is alleged, were superinduced by the permission and privilege given by the appellants. Waiving all consideration of the question, whether, if a necessity existed for doing so, Griffith on due notice had not a right to remove the wall and build a new one, a question on authority very far from easy answer, it is clear, that the language of the paper, executed by the appellees, did not give any permission or privilege, either to pull down the old wall, or to diminish the possessions of the appellants. What it authorized Griffith to do was, “to have the said party-wall raised to the height of four stories, and to have the same continued in a straight line with the present division wall to within three feet of the alley in the rear. ’ ’ Of this there is no complaint. That which is complained of was not authorized by the appellees. Whatever injury resulted to the appellants from the changes made, flowed from the acts of Griffith, and if there be responsibility anywhere, it is with him.

These observations cover the whole case, and are deemed sufficient to show that the plaintiffs cannot maintain the ac *46 tion. We concur with their counsel, however, that had it been established that the appellees were naked executors of the will of Joseph Wilkins, and had done the injury complained of under the pleadings in the cause, they would ' have been liable in their individual capacities. The authorities cited by counsel for appellants, are decisive on the point.

(Decided June 1st, 1860.)

It was -agreed by the consent given to the defendants first prayer, that there could be no recovery against the defendants as executors. That consent makes the prayer law, so far as this appeal is concerned; and we have shown that there can be no recovery against them in their individual or representative capacity, on the pleadings and evidence. .

It follows, from what we have said, that the plaintiffs sustained no injury from the refusal of their prayers, nor from the granting of some of those of the defendants. Inasmuch as we are of opinion there can be no recovery in this case, we affirm the judgment without reference to the precise language of the instructions refused on the one side or granted on the other.

Judgment affirmed.