The John Hancock Mutual Life Insurance Company v. Patterson
| Decision Date | 15 September 1885 |
| Docket Number | 11,855 |
| Citation | 2 N.E. 188,103 Ind. 582 |
| Parties | The John Hancock Mutual Life Insurance Company v. Patterson |
| Court | Indiana Supreme Court |
Petition for a Rehearing Overruled Nov. 21, 1885.
From the Marion Superior Court.
Judgment reversed, with costs, and remanded for a new trial.
J. S Tarkington and U. J. Hammond, for appellant.
W Patterson, for appellee.
This suit was brought by Patterson against the insurance company to quiet title to a strip of ground five feet in width in the city of Indianapolis. Shortly stated, the facts found by the court, necessary to present the question for decision, are as follows: On the 20th day of October, 1876, John Patterson was the owner of a parcel of ground, the proper description of which was, lots two, three, four, and five feet off the north side of lot five, in Brockway's subdivision of out-lots eighty-four and eighty-five, in Blackford's subdivision of out-lot numbered one hundred and fifty-four, in the city of Indianapolis. These several descriptions lay contiguous to each other, forming a body with a frontage of ninety-five feet on California street, extending back one hundred and fourteen feet. The ground was divided by fences into three separate parcels or enclosures, each having upon it a house with necessary appurtenances, the houses being numbered respectively 293, 297 and 301. Desiring to obtain a loan from the insurance company, Patterson made a written application in which he stated that he would give, as security, a mortgage on "Nos. 293, 297 and 301, on California street, land measuring ninety-five feet on the street, extending back one hundred and fourteen feet; containing ----- square feet; value $ 75 per front foot; buildings, three dwelling-houses built of wood," etc. An appraisement was made, the appraisers valuing the land at $ 60 per foot, amounting to $ 5,700, and the improvements at $ 5,000. The company's agent examined the property with Patterson, who pointed out to him Nos. 293, 297 and 301, including the yards and appurtenances enclosed with each, and after such examination the agent advised that the loan be made on the security of the property. Patterson thereupon caused an abstract to be prepared and furnished the same to the attorney of the insurance company. On the abstract furnished the property was described as lots two, three and four, in the subdivision above mentioned. A mortgage was thereupon prepared by the company's attorney, in which the description on the abstract was followed, which omitted any mention of the five feet off the north side of lot five.
The mortgage was duly executed by Patterson and wife, and the loan made by the insurance company in the belief that the description in the mortgage covered the ninety-five feet, with the houses and appurtenances as pointed out. Subsequently, the debt falling due, the mortgage was foreclosed, the property sold under the decree and bid in by the insurance company for the full amount of its debt, interest and costs, which amounted to $ 5,829.70. The decree and sale followed the description contained in the mortgage, the company all the while supposing that such description embraced the ninety-five feet, with the houses as above numbered, and the plats or enclosures with each, as they appeared. Patterson remained in possession until the year for redemption expired, when the company received a sheriff's deed, and went into and still remains in possession of the whole, Patterson becoming tenant of No. 293.
It was found that the house on No. 293 rests upon some part of the north margin of the five-foot strip which was not embraced in the description as written in the mortgage and subsequent proceedings under it, and that some of the appurtenances to the house were also on this strip, and that the whole strip was fenced in with, and formed a part of, the yard and enclosure, but to what extent the house rests on this strip the court was unable to find from the evidence.
About the time the foreclosure proceedings were commenced, Patterson conveyed the five-foot strip to his mother. Nancy Patterson, in payment of a valid antecedent debt, and she afterwards conveyed it to the appellee, Clide S. Patterson, who paid nothing for it.
There was no attempt at any time to reform the mortgage, nor is there any claim that it should be reformed. There is no finding that Patterson was guilty of any fraudulent representation or concealment, except as the same may be inferred from the facts above stated.
The question now is as to the respective rights of the parties in the five-foot strip.
On behalf of the insurance company, it is claimed that because part of the house, No. 293, rested on the margin of this strip, and other parts of it were occupied by appurtenances to the house, and the whole of it formed a part of the yard and enclosure at the time the mortgage was made and the proceedings and sale under it were had, the whole strip, or at least an easement in it, passed to the purchaser under the mortgage. Counsel, stating their position, say: "If Patterson owned lot number four, and five feet off of the north side of lot five, and the dwelling and appurtenances upon lot four, and said five feet were all in one enclosure as one yard or parcel, and through, by and under him, appellant has derived title to lot four, and possession of the house, with the enclosed yard, or parcel, and appellee has not shown what, if any, part of said five feet is not occupied by said house and appurtenances (he having the burden), the plaintiff, deriving his subsequent title from said John Patterson, can not recover because the dwelling-house, well, coal-house, etc., constituted an apparent easement, to which said five feet was in servitude."
Counsel say further:
On behalf of the appellee, it is contended that as neither the five-foot strip of land nor any interest in any part of it is embraced in the description contained in the mortgage, and the proceedings had under it, nothing passed by implication of law outside the line of the boundaries described.
Presumably, the mortgage contained the usual covenants, but as no mention was made in it of the land here in dispute, or of any right or interest in it, the question is, did any right to or interest in it pass by operation or construction of law?
Upon the subject of easements passing by implied grant, much discussion is found, and while substantial agreement exists as to general rules, considerable uncertainty prevails in their application to particular cases.
As applied to easements in respect of light and air, the subject has been considered and decided by this court. Stein v. Hauck, 56 Ind. 65 (26 Am. Rep. 10). We are not aware that the precise question here involved has received the consideration of the court before. The reasons which control the subject of implied grants, when applied to light and air, are not controlling when such grants are based upon necessity, or the use of actual, visible arrangements and appurtenances annexed to, or adopted by an owner for the apparent and permanent benefit and use of the estate. As a basis for the application of the doctrine, there must have existed a unity of seizin, and a disposition and arrangement of the several parts of one estate with relation to each other, followed by a severance in the ownership. During the unity of title, the owner may subject one of several tenements or adjoining parcels of land to such arrangements, incidents or uses, with respect to the other, as may suit his taste or convenience, without creating an easement in favor of the one as against the other. This is so because the owner can not have an easement in land of which he has the title. The inferior right is merged in the higher title. By the common law it is said to be extinguished by the unity of title. In the civil law it is lost by "confusion." By both, if the easement existed before the unity of seizin, it may revive upon a severance, or, if none existed, such arrangements may be adopted while the seizin is united, as that upon a severance an easement will be created by implication of law.
Where during the unity of title, an apparently permanent and obvious...
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Fischer v. Revett
...was not supported by sufficient evidence. The leading Indiana decision concerning implied easements is John Hancock Mutual Life Ins. Co. v. Patterson (1885), 103 Ind. 582, 2 N.E. 188, where the court found such an easement was implied for the wall of a dwelling. The general rule is that whe......
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...which could have further strengthened the State's argument that an implied easement presently existed. John Hancock Mutual Life Insurance Co. v. Patterson (1885), 103 Ind. 582, 2 N.E. 188; State ex rel. McNutt v. Orcutt, supra." 375 N.E.2d 1129 at We have examined the cases above cited, and......
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...which could have further strengthened the State's argument that an implied easement presently existed. John Hancock Mutual Life Insurance Co. v. Patterson (1885), 103 Ind. 582, 2 N.E. 188; State ex rel. McNutt v. Orcutt, Innkeeper has raised numerous procedural arguments concerning the Stat......
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John Hancock Mut. Life Ins. Co. v. Patterson
... ... Patterson, for appellee.Mitchell, C. J.This suit was brought by Patterson against the insurance company to quiet title to a strip of ground five feet in width in the city of Indianapolis. Shortly ... create a permanent and common use in the one part for the benefit of the other, or for the mutual benefit of both; and it must be reasonably inferable from the existing disposition and use that it ... ...
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...(Cellotto, J.). 23 Rischall v. Bauchmann, 132 Conn. 637, 642-43, 46 A.2d 898 (1946) (quoting John Hancock Mut. Life Ins. Co. v. Patterson, 103 Ind. 582, 586, 2 N.E. 188 (1885)); accord D'Amato v. Weiss, 141 Conn. 713, 716-17, 109 A.2d 586 (1954); see SERVITUDES, supra note 5, § 2.12. 24 Leo......