Hiss v. McCabe

Bartol O. J., delivered the opinion of the Court. The original hill of complaint in this case was filed by the appellee on the 11th day of March 1868, alleging that the complainant is the owner of a lot of ground having a front on Watson Street of twenty-five feet or upwards, and a depth of 100 feet, a part of which is improved with a two-story frame dwelling house, having a front on said street of about thirteen feet more or less, and a depth of about 40 feet, known as No. 12 Watson Street, more fully described in “ Exhibit A.” filed with the bill; which house was built more than forty years ago, and has been standing where it now stands ever since; that the appellant, who claims to be the owner of the ground on the West side of the house and lot of the complainant, has begun to tear down and destroy the said house, and to break up the same, and is now with his servants, agents and workmen, engaged in so destroying, tearing down and breaking up the complainant’s house, without authority ; that the said house and lot are now occupied by a German and his family, who hold the same as complainant’s tenants, that the said German is now sick and confined to his bed in said house, and that the appellant is doing irreparable damage to the complainant and his said property, and engaged in conduct tending to a breach of the peace; the bill prays for an injunction, which was issued. The “ Exhibit A” referred to in the bill is a deed dated August 21st 1862 from James H. Davis to Solomon McCabe (the complainant) conveying for the consideration of seventy-five dollars, a lot therein described as fronting 25 feet on Watson Street with a depth of 100 feet. After the injunction had been issued the appellant, having filed his answer, appealed from the order granting the injunction, ⁸¹ and upon the hearing of the cause in this Court, the order was affirmed and the case was remanded.

The opinion of this Court accompanying the decree is recorded among the unreported opinions (Liber G. E. and J. S. F., No. 1, folio 25.) After the cause was remanded, a commission was issued and testimony taken and on submission of the case for final hearing the Circuit Court on the 10th day of November passed a decree, making the injunction perpetual and awarding costs to the complainant. From that decree this appeal was taken. It appears that the title to the ground was in James Stirling who on the 27th day of September 1815, leased to Alexander Murray, for 99 years, a lot described by metes and bounds fronting 25 feet on Salisbury Street (since called Watson Street) of the depth of 100 feet, reserving a yearly rent of $50. At that time a portion of the front on Watson Street was improved by a frame house, which as it has since been discovered by actual measurement extended about nine inches heyond the line designated in the lease, being to that extent upon the adjoining lot on the west, then unimproved; Alexander Murray went into possession under the lease, and occupied the frame house till his death in 1851.

By his last will duly executed he bequeathed Ms house to his wife for life, then to be sold by his executor, the proceeds of sale to go to his adopted daughter, Victorine Murray. The appellee was named in the will as executor and guardian. On the 18th day of August 1862, he sold the house and lot at public sale to James H. Davis for $25 and conveyed it to Davis by deed dated August 21st 1862. In which the lot is described as in the original lease 25 feet by 100 feet, and is subject to the sub-lease of a portion thereof fronting 12 feet, made by Alexander Murray in his life-time, on which a yearly rent of $25, is reserved.

On the same day, Davis conveyed the same property to the appellee, by the deed ⁸² exhibited with the bill of complaint, and before referred to. This was the state of the appellee’s title when these proceedings were commenced. At that time the sister of the appellant owned the adjoining lots on the west, fronting on Watson Street and claims title to the ground, to the west line of the lot described in the lease from Stirling to Alexander Murray, about nine inches of which were covered by the frame dwelling house occupied by the appellee’s tenant, and wishing to erect improvements on the lots thus claimed by her, proceeded by the appellant, who acted as her agent, to tear down and remove the western end of the appellee’s house, and the injunction prohibited him from tearing down, breaking up, destroying or in any way interfering with the house and premises of the appellee. It appears from the record that pending the former appeal, and while the operation of the injunction was stayed, the appellant went