Maynard v. Esher , 1851 Pa. LEXIS 163 ( 1851 )

The opinion of the court was delivered by

Lowrie, J.

The Court of Common Pleas of Philadelphia county is a court of law and equity. In other words, it is a court of justice administering remedies in the forms both of law and chancery. Unlike chancery courts elsewhere, it has no need of the assistance of another court in administering justice, for it is bound to know both law and equity, and it has jurors at all times in attendance capable of trying all disputed facts arising in a suit.

When, therefore, issues of fact arise and a jury is demanded, the court should oversee the framing of the issues, and order them to be tried by its own jury, and then proceed itself to .determine the rights of the parties on the facts found and admitted. In the case before us, there were no such .disputed facts as justified an order for a jury trial; and it is not clear that an issue of fact was intended when the parties were ordered to try their rights at law.

However this may be, the District Court might very properly have refused to try this wager in aid of a court that could do its own business; and we have had some hesitation in allowing it to be heard before us. But it being shown to us that, this wager suit is ancillary to a case actually pending, we have, in order to save delay and expense to the parties, consented to overlook the irregularity of the proceeding and to hear the case.

The decision of the court below is in substance, that these two sales were simultaneous, and, therefore, that the defendant bought his lot with notice of and charged with the servitude of light and air which the windows of the plaintiff’s house claim, even 'though each lot was sold clear of all encumbrances.

There are three propositions virtually affirmed in this decision, to wit: that, on the sale of a house’ and lot, a.n easement or servitude for light and air may be implied by our law from the character of the building; that two sales, made in fact consecutively to different purchasers, may be treated- as simultaneous, for the purpose of affecting the title of him who*was, in fact, the first purchaser; and that, the sales being simultaneous, one purchaser acquires the right of easement on. the lot of the other, though each lot is sold clear of all encumbrances.. •

Without admitting or unnecessarily corisidéring the first proposition, and for the purpose of reaching. the consideration of the others, we may join in assuming that, .where a man, owning a lot partly covered by a house, with windows opening out upon the other part, sells the part on which the house stands; then the purchaser acquires a right to have light.an’d air from the adjoining part, so that the vendor will be restricted'in building upon it.

The principle assumed is, that the vendor grants an easement by implication, because the house, as it exists, demands the easement, and he has power to grant it. On the principle, therefore, the easement cannot be implied, unless; at the time of the sale, the vendor owned the adjoining lot. Hence the importance of the time in these two sales; and the question is, will the law treat them as Simultaneous, because they took place'at the same public sale, even though they were in fact successive, and • though it is physically impossible that it could be otherwise.

'It is plain, that, if such simultaneousness exist at all, it. is only by a legal fiction. But the legal fiction,' that there- is no smaller fraction of time than-a day, is generally, if hot-entirely, confined ■to judicial and other public 'proceedings, and does not apply to transactions between parties whose priority of right becomes a question of fact. It is on a different principle that a contract made in the morning, and to be performed after a given number of days, is satisfied by a performance on any part'of the-last day. And there are eases where the exact hour of the passing of a statute or the entry of a judgment may need to be inquired into on a question of right. In questions of priority of purchase, the exact hour may always be inquired into: The Mechanics’ Bank v. Gorman, 8 W. & Ser. 304.

It may be said that the whole set of sales, made by the auctioneer for the vendors, was one transaction, and therefore, as matter of law, simultaneous. But this cannot be. As between the vendors and the auctioneer, it might be called one transaction; but as between the vendors and two different and independent purchasers, there are necessarily two transactions;. and where justice demands the ascertainment of their order in time, it must he allowed. Therefore the court should have instructed the jury that, if they believed the evidence on this point, the verdict should be for the defendant.

But if we recur to the principle that the easement cannot be implied, unless at the time of the sale to the plaintiff the vendor had power to grant it, we shall see that the assumed simultaneousness of the sales does not help the plaintiff. To imply such a grant, the plaintiff’s purchase must have been prior to, and not simultaneous with the defendant’s. In order that the defendant’s lot should become servient to the plaintiff’s, the plaintiff must have acquired the servitude before the defendant bought, and then only would the defendant take his lot charged with the servitude. Where both lots are passing out of the vendor at the same instant, it is impossible to imply that he is making one servient to the other; and this is especially so when he is selling both lots clear of encumbrances, for an easement is an encumbrance.

Rejecting, therefore, all the evidence as to the priority of the defendant’s purchase, the deeds show a simultaneous purchase, and the court should have instructed the jury that the defendant was entitled to the verdict. As the whole case comes up here on the reserved point, we shall do what the court below ought to have done. If the cause had come up on a final decree on the bill in equity,' we should dismiss the bill; but as it is, we can act only on the feigned issue now before us.

Judgment reversed, and judgment for defendant below with costs. '