Somers v. Schmidt.

with the principle upon which such estoppels rest. The warrantor, being notified of the suit, and having the defense tendered to him so far as it may be necessary for him to establish his title, if he had one, becomes a quasi party to the suit, has his day in court, and ought to be concluded by the judgment. But without such notice and a request to defend, he has no such opportunity, and ought not to be estopped. And when we consider this principle upon which the judgment is held conclusive against the warrantor, and the rule which almost universally prevails in judicial proceedings, that notices must be in writing, it would seem that Judge BRONSON was not so very far wrong in Miner v. Clark, when he insisted that this also should be written. And especially would this seem proper where it is held, as it has been in some of the states, that notice to the warrantor in his life-time is sufficient to bind his legal representatives after his decease, without the giving of further or other notice to such representatives. This was so held in Brown v. Taylor, 13 Vt. 631; but the notice there was in writing. But as it appears to be settled that verbal notice is sufficient, we are not disposed to depart from that rule, though we might wish, for the sake of greater convenience and certainty, that it had been otherwise established.

If, on the other hand, upon mere knowledge of the suit, however acquired, the warrantor would be authorized to come in and assume to conduct the defense, so far as the proof of his own title was concerned, there might be some reason for holding him bound by such knowledge. But, without the assent of the defendant in the suit, he has no such authority. It is res inter alios acta, and, if he should apply to the court for permission to defend, the defendant not having voluntarily offered it, the answer would be that he had no occasion to do so, since his rights could not be affected by the judgment.

In making these observations, we are fully aware that there is a class of cases of another kind to be found in the books, in which a somewhat different and more liberal doctrine with respect to notice seems to prevail. Chicago City v. Robbins, 2 Black, 423, and cases there cited are instances. It is held, in those cases, that express notice to defend the suit is not necessary. It will be found in all of them, however, that the notice of the suit was given by the party seeking to take advantage of the judgment, or by some person properly representing him. Thus, in Chicago City v. Robbins, the notice was by the city attorney, who applied to Robbins to assist him in VOL. I.-25

Somers v. Schmidt.

procuring testimony. Robbins did so, wrote to a witness, and was, notified by the city attorney when the trial was to take place. But it is enough to say of those cases, that they were none of them actions upon the covenants contained in the deed, and that the rule laid down in them has never been applied to an action of that kind. They are not referred to by Mr. Rawle, although some of them are of quite an early date, and evidently because he considered them inapplicable. Neither do we find them referred to by the courts in cases where the question has been up as to the sufficiency of notice to bind the covenantor in a deed, although they were decided by the same courts by which this question has been so fully settled. Our conclusion, therefore, is, that the doctrine of those cases is inapplicable, and ought not to govern in an action like this.

But if the notice in this case were otherwise good, it was clearly defective in having come to the plaintiff in error too late. Notice, when given by the grantee himself, must be seasonable. The object being to enable the warrantor to come in and defend his title, the notice should be given at or before the return of process, or at least before the expiration of the time to plead or answer, and so that he may have reasonable time to prepare for the defense. It does not appear that the knowledge acquired by the plaintiff in error at that late day was, or could have been, of any avail to him, and the inference must be that it was unavailing. On this point see Davis v. Wilbourne, 1 Hill (S. C.), 28, cited in note to Rawle on Covenants, supra.

It follows from these views, that the learned judge who presided at the trial was in error, both in the instructions which he gave to the jury and in those which he refused. He should have given those asked by the counsel for the plaintiff in error, numbered one and two in the bill of exceptions,* and should not have given those numbered four, five and six, to which the plaintiff in error excepted. †

Judgment reversed and a venire de novo awarded.

The following are the instructions referred to: 1. That unless Schmidt gave notice to Somers of the pendency of the suit brought by Christian Sauer against Schmidt and Jacob Sauer, the judgment in that action is not conclusive against Somers. 2. That such notice should have been given within a reasonable time after the commencement of the action, and more than one day prior to the term of court at which the action was tried.

+ These were as follows: 4. That it was not necessary that Somers should have had from Schmidt any formal notice, either written or verbal, of the action brought by Christian Sauer, any length of time prior to the rendition of the judgment, to make the same conclusive against him. 5. That if Somers had constructive notice or actual knowledge of the existence of that suit at a reasonable time prior to the rendition of the judgment, the same is conclusive upon him. 6. That if he had actual knowledge of the pendency of that action, at a reasonable time prior to the trial thereof, the judgment was conclusive upor aim.

Rice v. Roberts.

RICE and another, appellants, v. ROBERTS.

(24 Wis. 461.)

Btatute of frauds — Oral agreement as to manner of building - Party wall- Rexo

cation of license.

An oral contract between the owners of adjoining lots, limiting the use which one of them should make of his lot, or the manner in which he should build upon or occupy it, is within the statute of frauds, and therefore void. The sale and conveyance of land by the owner amounts to a revocation of an oral agreement between him and an adjoining owner, whereby the latter was to build on the line between the lands a party wall, and the former was to pay one-half the cost thereof, provided the adjoining owner has notice of the sale, and has not at the time commenced the erection of the wall.

APPEAL from a judgment of nonsuit.

The action was brought to recover one-half the cost of a party wall built by the plaintiffs on the line between their lot and an adjoining lot formerly owned by the defendant; and also to recover damages for breach of an alleged agreement between plaintiffs and defendant, that any building erected by the latter on his lot should not project farther in front than the building erected by the plaintiffs. The following facts were disclosed by the evidence: The defendant, while negotiating with the former owner of the lot adjoining the plaintiffs', for its purchase, and when about to purchase it, made a verbal agreement with the plaintiffs, whereby the latter were to build on the line between the two lots a party wall, one-half the cost of which the defendant agreed to pay whenever it was used; and he further agreed to set his building, when he should build, three feet back from the street, to correspond with the plaintiffs' building. This agreement was to bind the defendant's heirs and assigns, and was to be put in writing "at the earliest opportunity." The defendant purchased the lot, and soon after, and before the plaintiffs had begun to build the wall, sold it to one Strickland, without any reservation. Strickland afterward erected a wooden building on the lot, with one side resting against the said vall, and extending in front three feet beyond the plaintiffs' building

E. L. Browne and Myron Reed, for appellants.

M. H. Sessions, for respondent.

Rice v. Roberts.

DIXON, C. J. The claim of the plaintiffs upon which this action is brought, is divided into two branches; the one, the price agreed to be paid for one-half of the party wall when used; and the other, tle damage claimed by the plaintiffs for the erection of the buildlug by Strickland beyond the line of the plaintiff's building, an? up to the line of the street in front of the same.

We will consider the last branch first, namely, the claim for damage; and upon that we have but little to say. The contract was a verbal one, no writing whatever having been made or signed by the parties. The right claimed by the plaintiffs under it to control or dictate as to the use which should be made of the adjoining lot, or the manner in which the owner should build upon or occupy it, was obviously an interest in or power over land. By the statute of frauds every such interest in or power over the land of another must be granted or created by writing, subscribed by the party granting or creating the same, or it is void. R. S. ch. 106, §§ 6, 8. This contract being clearly within the statute, is therefore void, and no action can be maintained upon it in this respect. Upon this question we refer to the case of Wolfe v. Frost, 4 Sandf. Ch. 72, cited by counsel for the defendant; for it is seldom that an authority so exactly in point can be found. The opinion of the assistant ice-chancellor is an able one, and very satisfactorily disposes of this question.

The other branch of the plaintiff's claim, though resisted on the same ground, may not be within the statute of frauds. If the defendant had continued the owner of the lot, and had himself erected the building, and used the party wall, no reason is perceived why the plaintiffs might not have recovered the price agreed upon for building the defendant's half of it. It would then have been a contract executed on the part of the plaintiffs, and so not within the statute, and the defendant, having received the benefit of the work performed and materials furnished, would have been obliged to pay the price according to his promise. But, inasmuch as the defendant had sold and conveyed the lot before the plaintiffs built the wall, and as the plaintiffs were immediately informed of the sale and conveyance, and built the wall, knowing that the defendant had no interest in it, and would derive no benefit from it, the question arises whether they can now insist upon his paying for it. It does not appear that the defendant was guilty of any bad faith in the transactions, or that the plaintiffs had not

Petition of McCormick.

ample time and opportunity to have fully protected themselves from any loss or damage in this respect, either by contracting with Strickland, the defendant's grantee, or by refusing to build one-half the wall on Strickland's lot. But since the contract was not at that time obligatory upon the defendant, the plaintiffs not then having executed it, or entered upon the work, it seems to us that the plaintiffs ought not, under the circumstances, to be permitted to avail themselves of its subsequent execution for the purpose of charging the defendant with the expense. The sale and conveyance of the and by the defendant, with notice thereof to the plaintiffs, were equivalent to a revocation, on the part of the defendant, of the contract or license to go on and build the wall which he had the right to revoke; and the building of the wall thereafter by the plaintiffs, with intent to charge the defendant with the price, seems to savor somewhat, to say the least of it, of want of due care and diligence on their part in the performance of their duty toward the defendant. We do not think, therefore, that there should be any recovery upon this branch of their claims, and are, consequently, of opinion that the judgment of the circuit court was correct, and should be affirmed.

Judgment affirmed.

PETITION OF MCCORMICK.

(24 Wis. 492.)

Oriminal law. Sentence for consecutive terms.

Where a prisoner has been convicted of several distinct offenses, the court may give judgment upon each one of them; and, in doing so, may lawfully direct that the term of imprisonment for one shall commence at the expiration of that for another, and so on until all the terms have expired.

DIXON, C. J. At the November term, 1865, of the circuit court for the county of Outagamie, the petitioner was tried and convicted upon three several indictments for larceny: the first, for stealing two oxen, the property of one Christian Juchemon; the second, two oxen, the property of one Richmond Pierson; and the third, a horse, buggy and harness, belonging to one Lot Townsend. At a subse