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Opinion of the Court.

resting upon it, that its judgment might attach to the equitable estate of the mortgagor in it.

This case, although not analogous in its facts with Campbell v. Trotter, 100 Ill. 281, is within the just principle of that case. All the bank is equitably entitled to by its levy and sale, is the interest Defenbaugh had in the property. That was absolutely nothing, for he never paid any portion of the purchase price. Standing in his shoes the bank occupies no better position than he did. Before the bank can obtain any title to the property, it must pay what Defenbaugh was obligated to pay as purchase money, and taxes accruing on the land. The suggestion the bank can take the property as the property of its judgment debtor, discharged from the prior subsisting liens thereon for the purchase money, has absolutely nothing in its support, either in law or justice.

The taxes accruing on the property were a prior lien, which the bank's debtor was obligated to pay, and they follow the property. It is a matter of no consequence whether the taxes were paid by King & Hamilton or Sweetser. Payment of the taxes was necessary to preserve the property for the benefit of all concerned, -the bank as well as others,-and it was not error to charge the property with their payment, and whoever obtains the property must take it with that incumbrance resting upon it.

It may be the decree requires the payment to the original complainants of more money than they are entitled to receive from the property, as between them and Sweetser. Perhaps all they are entitled to receive is the $4400 due from the estate of Walters, with the interest and the taxes they actually paid on the property. But of that no one can complain but Sweetser, and he has assigned no cross-errors in this court. The bank is in no way interested in adjusting the equities touching the sum secured on the property, as between

Opinion of the Court.

the original complainants and Sweetser. By the decree the bank was required to pay no more than should be paid to complainants, King & Hamilton, and to Sweetser, and so far as it is concerned it matters little to whom the court directed it to be paid. In no event can the bank obtain title to the property until it shall have paid all that Isaac Defenbaugh was obligated to pay for the land, and the decree does not require it to do more.

It is said it was error to decree a strict foreclosure in this case. As this decree is understood, it does not purport to foreclose any of the mortgages on the property. That portion of the prayer of the bill asking for a foreclosure of the mortgages does not seem to have been allowed. It appears the amount due from Isaac Defenbaugh on the property for the purchase money, interest and taxes, is more than its actual value. All the decree does is to declare that unless the bank shall, within ninety days, pay the amount that would have been due from Defenbaugh, it shall thenceforth stand absolutely debarred and foreclosed of and from all right, title and interest, and equity of redemption, in and to the land. Ninety days was a reasonable time in which to pay the money. Although the specific relief asked was not granted, it was proper, under the general prayer for such relief as the facts warranted, to decree as was done.

No error appearing in the record which injuriously affects the bank, which is the only party assigning error in this court, the judgment of the Appellate Court must be affirmed. Judgment affirmed.

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1. EASEMENTS-of the different kinds-and the incidents thereof. Easements are of two kinds-appurtenant or appendant, and in gross. The former run with the land, and pass by a deed of conveyance; but the latter are personal, and will not pass by a deed of conveyance.

2.

SAME-grant of a way—whether in gross, or appurtenant-presumption. The grant of a way is never presumed to be in gross when it can be fairly construed to be appurtenant to the land.

3.

SAME-reservation of a servitude-whether the servitude becomes appurtenant. Where it appears, by fair interpretation of the words of a grant, that it was the intention of the parties to create or reserve a right, in the nature of a servitude or easement, in the property granted, for the benefit of other land of the grantor, and originally forming, with the land conveyed, one parcel, such right will be deemed appurtenant to the land of the grantor, and binding on that conveyed to the grantee; and the right and burden thus created will pass to and be binding on all subsequent grantees of the respective lots of land.

4. SAME-in the particular case. A, being the owner of eighty-nine feet of ground, bounded on the east and south by two streets, and extending west ninety feet to a lot extending north and south its entire width, in 1856 sold B the south forty-nine feet of the tract, which was followed by a deed on June 1, 1860, the contract and deed both containing this clause: "Excepting and reserving therefrom ten feet across the west end of said premises, for an alley." This forty-nine feet passed by mesne conveyances to C, the deeds containing the same reservation as in the deed from A. In 1860 A sold to D twenty feet off the south side of the remainder of his said tract, but prior to this he conveyed the north twenty feet joining that sold to D, and it passed by mesne conveyances to E. The deeds conveying each of these tracts contained the same exception and reservation as in the first deed. At the time A sold the forty-nine feet he did not occupy any part of the tract, but was a non-resident of the State: Held, that the situation and location of the property, the manner in which it was used, in connection with the reservation and exceptions contained in all the deeds from A, clearly indicated an intention to create or establish an alley for a right of way, in the nature of an easement in the property granted to B, for the benefit of the other adjoining property owned by A.

Brief for the Plaintiffs in Error.

5. SAME-whether lost by mere non-user. Easements acquired by deed, as a general rule, are not lost by non-user, when there is no adverse possession to bar the right.

6. SAME-limitation-what is an adverse possession. In order to bar an easement, such as a right of way appurtenant, the proof must show twenty years' adverse possession. The building of a sidewalk on a street adjoining land over which there is such an easement, and maintaining the same, can not be regarded as an adverse possession of such land.

7. DEDICATION-reservation in a deed, of part of a lot for an alley. An owner of a tract of land in a city sold and conveyed the south forty-nine feet thereof, the deed containing this clause: "Excepting and reserving therefrom ten feet across the west end of said premises, for an alley:" Held, that the ten feet across, the west end did not pass, but was reserved from the grant, and dedicated to a specified purpose,-to be used for an alley.

8. CONSTRUCTION OF CONTRACTS-ascertainment of intention. In construing deeds or other writings, courts must seek to ascertain and give effect to the intention of the parties; and for that purpose they may and will take notice of attendant circumstances, and by them determine such intention.

WRIT OF ERROR to the Appellate Court for the First District;—heard in that court on writ of error to the Superior Court of Cook county; the Hon. JOHN A. JAMESON, Judge, presiding.

Mr. FRANCIS LACKNER, and Mr. SIDNEY C. EASTMAN, for the plaintiffs in error:

Easements and servitudes are of two kinds,-appurtenant or appendant, or in gross or personal. The former run with the land, while the latter are personal benefits, and are not assignable or inheritable. A good definition of the subject is found in Whitney v. Union Ry. Co. 11 Gray, 365.

The grant of a way is never presumed to be in gross when it can fairly be construed to be appurtenant to the land. Washburn on Easements, chap. 1, sec. 3, No. 2, and chap..2, sec. 1, No. 5; Louisville and Nashville R. R. Co. v. Koelle, 104 Ill. 455; Winthrop v. Fairbanks, 41 Maine, 307.

Counsel cited and quoted from the following cases, in which reservations and exceptions in conveyances were held to create easements appurtenant to other land: Mendell v. Delano,

Brief for the Defendant in Error.

7 Metc. 176; Karmuller v. Krotz, 18 Iowa, 353; Bowen v. Conner, 6 Cush. 132; Kent v. Waite, 10 Pick. 138; Child v. Chippel, 9 N. Y. 257.

In construing deeds the courts will ascertain and give effect to the intention of the parties, and for that purpose will take notice of attendant circumstances. Hadden v. Shoutz, 15 Ill. 582.

Easements acquired by deed can not be lost by non-user. Arnold v. Stevens, 24 Pick. 106; White v. Crawford, 10 Mass. 189; Smiles v. Hastings, 24 Barb. 49; Angell on Watercourses, sec. 252.

Messrs. ROSENTHAL & PENCE, for the defendant in error:

If the thing granted or reserved be non-continuous, or is to be used only occasionally, like a way, it creates only an incorporeal hereditament-an easement-and not an estate or fee in the land. Garrison v. Rudd, 19 Ill. 563; Washburn on Easements, 29, 31.

Ways are said to be appendant or appurtenant when they are incident to an estate, one terminus being on the land of the party claiming. They must inhere in the land, concern the premises, and be essentially necessary to their enjoyment. Washburn on Easements, *161; Karmuller v. Krotz, 18 Iowa, 357; Morgan v. Mason, 20 Ohio, 409; Garrison v. Rudd, 19 Ill. 558; Louisville and Nashville R. R. Co. v. Koelle, 104 id. 455.

If an easement has been granted by deed, the ordinary rule which governs in similar cases prevails, namely, that the rights of the parties to the deed must be ascertained from the words of the deed, and the extent of the easement can not be determined from any other source. Goddard on Easements, 275.

Non-user is not exactly of the same character as adverse enjoyment, though the length of time-twenty years-which it takes to destroy an easement by non-user is the same as

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