Maher v. Cleveland Union Stockyards Co.

• Citation: 55 Ohio App. 412,9 N.E.2d 995
• Parties: MAHER v. CLEVELAND UNION STOCKYARDS CO.
• Decision Date: 27 June 1936
• Court: United States Court of Appeals (Ohio)

9 N.E.2d 995

55 Ohio App. 412

MAHER v. CLEVELAND UNION STOCKYARDS CO.

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 27, 1936

Syllabus by the Court .

1. A covenant in a deed to a strip of land reciting a $2 consideration and that ‘ as a part of the consideration of this deed, said grantee agrees to protect and save harmless said grantor from all assessments for the opening of Storer avenue * * * as to said grantor's adjoining or abutting property’ is a postponement of the payment of the actual consideration, and since assessments for street improvements are against the land only, the intention of the parties was that the covenant was to run with the land.

2. The fact that a deed does not contain the word ‘ assigns' or that the covenant or condition to be thereafter performed is not in esse at the time the conveyance is made, is relatively unimportant as to whether a covenant is personal or runs with the land; the important fact being the intention of the parties.

3. A grantee of the covenantor assumes the obligation of the covenant where the deed contains the clause, ‘ and being the same land and subject to the same conditions contained in the deed from the covenantee to the covenantor.’

4. Under such facts, estoppel arises although not fully pleaded and a court of equity will estop the grantee of the covenantor from asserting that the covenant was a personal one.

5. The grantee named in a quitclaim deed not only takes the land subject to all equities against it, but such deed passes all equities existing beneficial to the estate conveyed which the grantor might have enforced.

6. A covenant to pay assessments for a street opening does not include the assessment cost of sewering such street.

Squire, Sanders & Dempsey, of Cleveland, for appellant.

John H. Hogg and Harry W. Lower, both of Cleveland, for appellee.

SHERICK, Judge.

The defendant, the Cleveland Union Stockyards Company, appellant herein, appeals to this court upon a question of law from a judgment adverse to it in the sum of $2,130.41. The cause was tried to the court upon an agreed statement of facts without the intervention of a jury. The plaintiff, Anna Maher, appellee herein, pleaded in substance the relevant facts hereinafter to be enumerated, and asked for equitable relief and for a money judgment. The answer filed admitted certain facts, and then denied the plaintiff's claim generally. From the pleadings and agreed facts, the following is established:

In 1897 Michael Maher, the father of the plaintiff, owned a 2-acre tract of land fronting on Ridge road. It did not abut upon any other public way. The rear portion of this long and narrow tract adjoined a parcel of land leased and occupied by the Farmers' & Drovers' Stock Yards Company. This parcel had an insufficient or no outler. Michael Maher and other property owners conveyed to the Farmers' & Drovers' Stock Yards Company a strip of ground 30 feet in width off the rear of their respective properties. This strip would thereafter necessarily become the south half portion of Storer avenue when and if it were produced. The consideration for the Maher deed was $2. The instrument, however, contained the following covenant:

‘ As a part of the consideration of this deed, said grantee agrees to protect and save harmless said grantor from all assessments for the opening of Storer avenue from the center of Gordon avenue 462 feet and 10 inches west as to said grantor's adjoining or abutting property.’

After the Farmers' & Drovers' Company procured this strip of land adjacent to its leasehold, it purchased the premises which it occupied as lessee. Thereafter, in 1903, the Farmers' & Drovers' Company sold all its assets, except cash and accounts receivable, to the appellant, free and clear of encumbrances, for capital stock of the appellant company of the par value of $450,000. It was thereafter presumably dissolved. It was not specifically contracted that the appellant would assume the obligations of its vendor. The deed passed for the conveyance of the Maher strip did, however, recite ‘ and being the same land and subject to the same conditions contained in the deed from Michael Maher to The Farmers' & Drovers' Stock Yards Company, dated December 8th, 1897, and recorded in Volume 676, page 216.’

In 1914 Michael Maher conveyed the remainder of his 2-acre tract of land to his daughter, the appellee herein, for a valuable consideration. This instrument contains no assignment of any claim or possible cause of action against the Farmers' & Drovers' Company. Michael Maher died in 1921. Thereafter in 1927, the city of Cleveland commenced proceedings to extend Storer avenue. The south half of the avenue so produced utilized the Maher strip acquired by the Farmers' & Drovers' Company, as also the like strips purchased of the two property owners lying between it and Gordon avenue. The sale price of the total strip was $1,263. The Maher portion was sold for $300. The north portion or half of Storer avenue produced was sold by the appellant to the city for the lump sum of $12,000. The assessments levied as against the Maher property for the opening of Storer avenue amount to $1,072.36. The penalty for delay in payment and the interest accrued thereon amount to $88.71 and $264.15, respectively.

In 1931 the city laid a sewer in Storer avenue. That portion of its cost assessed against the Maher tract is $613.33. The penalties and interest which now accompany this assessment amount to $38.38 and $53.48.

It is stipulated that demand was made by the appellee upon the appellant to pay these assessments, which it refused. The trial court upon this state of the record made a ‘ decree and finding for plaintiff’ an entered judgment against the appellant in the sum of $2,130.41, but subject to a diminution if the city's assessment claims were settled for a less sum, or to be enlarged by any subsequently accruing penalties and interest.

The appellant urges two grounds of error: First, in that the decree and judgment are not sustained by sufficient evidence and are contrary to law, and should have been in favor of the appellant; second, in that the amount of the recovery against it is too large. If the first error complained of is meritorious, it necessarily follows that the second claimed error need not be considered. We shall therefore proceed to first consider the principal question made.

It is maintained by the appellant that the covenant did and could not run with the land and that the predecessor parties never so intended. It is also urged that the covenant is but a personal and collateral promise, which did not create a servitude or charge upon the 30-foot strip in favor of the 2-acre tract, and that any such obligation was never assumed by it, and that the covenant is not such a one as equity recognizes as binding upon it.

If an analyzation of the host of reported cases were to be attempted, we should quickly find ourselves enmeshed in a prolixity of legal reasoning and conflicting theories as applied in the various jurisdictions. We perceive a point of difference in the cause before us which we are unable to find considered in any reported case. That distinction lies in the fact that the covenant or condition contained in the Maher deed to the Farmers' & Drovers' Company is, in fact a postponement of the payment of the actual consideration for the premises conveyed. It is evident that the sum of $2 was but the nominal and not the actual consideration agreed upon. The covenantee and the covenantor well knew that when and if Storer avenue was produced the cost thereof would be considerable and that the residue of the 2-acre tract would then be an abutting property to the street improvement and subject to assessment for the cost thereof. ...