Hays v. Askew
| Decision Date | 31 December 1857 |
| Court | North Carolina Supreme Court |
| Parties | WILLIAM HAYS v. JOHN O. ASKEW. |
Where a grantor of land reserves, for an “avenue,” out of the area conveyed, a certain space, which had been used for the same purpose, it was Held that the legal effect of the deed was to grant the soil, subject to an easement in the grantor.
To raise an estoppel, the admission must be certain.
An estoppel, as a general rule, does not grow out of a recital; to give it that effect, it must show that the object of the parties was to make the matter recited a fixed fact, as the basis of their action.
ACTION of TRESPASS, tried before CALDWELL, J., at the last Fall Term of Hertford Superior Court.
The declaration against the defendant was for erecting upon a public road or avenue, a ware-house, so near to the storehouse of the plaintiff as to obstruct his rights, and cause his chimney, when the wind blew, to throw back the smoke into his store-room, and otherwise injure him.
It appeared, in evidence, that the plaintiff erected a storehouse, in 1849, on the side of a certain public road, leading to Ewer's landing, and that the defendant, in 1856, erected a ware-house twenty feet long, twelve wide and nine high, in and upon another road, alleged by the plaintiff to be a public road, leading to the road on the side of which the plaintiff's store-house was erected, one corner of which, was within six and a half feet of the store-house. It also appeared, in evidence, that the road in which the defendant erected his warehouse, was cut out, many years ago, by one Montgomery, for an avenue from his house into the public road, and was known as Montgomery's avenue; that the defendant succeeded Montgomery by purchase, and it was then called Askew's avenue. It was also in evidence, that this avenue had been used by the public, as a near cut, to get into the public road leading by plaintiff's store-house, from the year 1843, until the defendant erected his ware-house.
It also appeared, in evidence, that the defendant, in 1849, sold and conveyed to the plaintiff, by deed, three acres of land, on which the said store-house was situated; the boundaries of which called for the public road above described and this avenue, and embraced, near the store-house, a part of the land which constituted the said avenue. At this point of the description in the deed, is this clause: “Here I reserve the width of twenty feet for my avenue: thence down the said avenue to the sweet gum, the first station, still reserving for ever the width of twenty feet, at least, for my avenue to my house.” It was on this width of twenty feet that the ware-house complained of was built.
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Emmons v. Sanders
...parties.' The character of the recital is important in determining whether an estoppel will arise from its use. As stated in Hays v. Askew, 1857, 50 N.C. 63, 65 'an estoppel, as a general rule, does not grow out of a recital; to give it that effect, it must show that the object of the parti......
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Youngerman-Reynolds Hardwood Co., Inc. v. Hicks, 3 Div. 242.
... ... the deed, and as to them and their privies the matter ... recited becomes a 'fixed fact.' Hays v ... Askew, 50 N.C. 63. * * * ... "By ... that deed J. P. Pendrey also showed clearly his intention, ... in so far as he was able to ... ...
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Winstead v. Farmer, (No. 49.)
...it the basis of the contract is clear, the recital is effectual and operates as an estoppel against parties and privies." Hays v. Askew, 50 N. C. 63; Meyer v. Reaves, supra. In Wright v. Fertilizer Co., 193 N. C. at page 305, 136 S. E. 716, Mr. Justice Brogden, in a well-considered opinion,......
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International Trust Co. v. Palisade Light, Heat & Power Co.
...an estoppel. 'To give it that effect, it must show that the object of the parties was to make the matter recited a fixed fact.' Hays v. Askew, 50 N.C. 63. Recitals which general, and not contractual, merely descriptive, are not binding. Muhlenberg v. Druckenmiller, 103 Pa. 631. To be bindin......