Price v. McConnell. WALKER, J. This was an action on the case instituted in the Morgan Circuit Court, for an alleged consequential injury to the building of defendant in error. It appears from the evidence in the record, that in June, 1850, he purchased the building in question, at a master's sale, of property belonging to the estate of the late Governor Duncan. The deed of conveyance contains this description and reservation: "Beginning at the south-east corner of lot number sixty-one, in the original plat of Jacksonville; thence running west forty-five feet three inches, more or less, measuring on the ground, to the west line of the main building of the "Morgan House," the owners on both sides to have mutual use of the present partition wall; from thence north one hundred feet; thence west sixteen feet nine inches; thence north eighty feet more or less to the alley; thence east seventy-two feet more or less to the north-east corner of said lot sixty-one; and thence south one hundred and eighty feet, more or less, to the place of beginning." The evidence also shows, that at the time this deed was executed, there was at the south end of the "Morgan House," and on the west side, a one-story brick building extending north, and adjoining to the "Morgan House" a portion of the distance of the length of that building. It also appears, that the joists of this one-story brick building were inserted into the west wall of the Morgan House at the time of the conveyance. Also, that the Morgan House was a threestory brick building, with a thirteen-inch wall, in the lower story, and a nine-inch wall in the two upper stories. Plaintiff in error having, in 1858, purchased the adjoining ground, on the west of the Morgan, now the Mansion House, including the one-story building, "together with the use in common with the owners of the ground occupied by the owners of the Mansion House, formerly called the Morgan House building, of the partition wall between the Mansion House and the premises hereby conveyed," proceeded to remove the old building from his lot, and to erect a new three-story brick building in its place. In doing so, he used the west wall of the Mansion House, as the east wall of his. And to accommodate his building, he pierced the west wall of the Mansion House and inserted the ends of three tiers of joists, which defendant in error claims, was without authority, and was injurious to his property. That plaintiff in error also attached a shed building, and in doing so, caused the earth to be removed to the depth of the foundation of a shed building, annexed to the Mansion House, and caused the foundation to be removed and replaced by another. He also removed the weather-boarding from the west side of this shed building, and Price v. McConnell. built the space between the plaster and weather-boarding, with brick as high as the eaves, which he sawed off and continued his own shed building above that of defendant in error. In doing so, he constructed a valley or gutter where the eaves had been removed, but it was insufficient to prevent leakage and dampness, and caused a door in that building to sag. He also placed some additional bricks on the parapet wall of the Mansion House to increase its height. Plaintiff in error, by his conveyance from Duncan's heirs, acquired all the right to use the west wall of the Mansion House as a partition wall, which was reserved in the master's conveyance to defendant in error. Whether it extended to the whole, as he contends, or it was limited alone to the wall separating the Mansion House from the one-story brick building on the west, as defendant in error insists, he succeeded to the right reserved to Duncan's heirs. And he had the unquestioned right to use whatever portion of the wall which was then reserved as a party wall, for that purpose, so that he occasioned no damage to the owner of the Mansion House. The use of such a wall is mutual, but it must be reasonable, and such that neither of the parties inflicts substantial injury upon the other. Nor has either the right to remove or destroy the wall, nor to appropriate it exclusively to his own use. But the main question in this controversy grows out of the construction to be placed upon the reservation contained in the deed from the master to defendant in error. If it can be ascertained, the intention of the parties to that deed must govern, in giving effect to the grant, as well as the reservation. It is also a rule of construction, that in cases of doubt, or when the language employed will reasonably bear either of two constructions, the instrument must be construed most strongly against the grantor. In this case the difficulty arises. from the fact that, at the time the master made the conveyance, there was a portion only of the west wall of the Mansion House actually used as a party wall between the buildings, whilst the remainder only separated the estates. Had the lot west of the Mansion House been wholly vacant, then there could have been no doubt as to the intention of the parties. But as it was then situated, did the parties only intend to reserve the right to continue the use of that portion of the wall then enjoyed as a partition between the buildings, or the entire wall separating the estates, as the partition wall? The master's deed conveyed the entire west wall to defendant in error, but reserved this privilege out of the grant. The call of the deed is for the west line of the west wall of the Price v. McConnell. building, and it will be observed that the reservation is not of that wall, or of the west wall of the building, but it is of "the present partition wall." This language seems to exclude the presumption that it was designed to reserve the whole of the west wall of the building as the partition wall. If that had been the intention, it seems manifest that, as that wall had been already named as the boundary, some specific reference would have been made to it as the partition wall, but the language employed seems to refer to something different. If this was not the manifest intention of the parties, there is at least serious doubts as to what it really was. Here was a wall dividing the two estates, and a portion of that wall also formed and was then used as a partition wall of the two buildings situated on each side of the line. The reservation seems, from the language employed, more naturally to attach to the wall actually in use, than to the entire west wall of the building, but if it seemed to apply equally to one or the other, still if the deed must be construed most strongly against the grantor, the reservation must be limited to that portion of the wall separating the two buildings then in existence. The court, therefore, by the instructions given for defendant in error, in adopting this construction, committed no error. The plaintiff in error, then, had no right to use any portion of the wall except that which was already appropriated to that purpose. He had no right to insert the ends of the joist of his building into any other portion of the wall of the Mansion House. He, by doing so, committed an injury to the reversionary interest of defendant in error, for which he had a right to recover damages. The evidence seems to establish the fact that he, in doing so, caused unnecessary injury to the wall. Whether the use of the entire wall as a partition was more convenient and less expensive to plaintiff in error, has nothing to do with the question. It is what were his legal rights-not what was convenient or profitable to him. The defendant in error had the undoubted right to use and enjoy his property in such a manner as he chose, independent of the opinion of others as to whether it is the most eligible that could be adopted, provided only that he inflicts no injury upon others. In this case, no error is perceived in giving these instructions, and the evidence warrants the finding of the jury. The judgment of the court below is therefore affirmed. Judgment affirmed. 27 260 143 631 Clarke v. Quackenbos et al. EDWARD M. M. CLARKE, Appellant, v. JULIA ANN APPEAL FROM MORGAN. Parties who claim that another is a trustee for their benefit, must clearly prove the fact. Especially so, if the trust is assumed to be in favor of those who have grossly ill-treated the person supposed to have created it. THIS is a bill filed December 22, 1859, requiring defendant to account to complainants, as heirs of Eleanor Clarke, deceased, for moneys received from said Eleanor; and also to account to them as their agent, for moneys received from the sale of lands of William A. Clarke, deceased. The bill alleges, that Mrs. Eleanor Clarke, widow of James B. Clarke, died intestate and unindebted, in December, 1856, at the residence of E. M. M. Clarke, the defendant, in Jacksonville, Illinois, leaving the complainants and defendant, heirs and distributees of her estate. That many years since, as heir of an uncle, she became possessed of from $15,000 to $20,000, which was placed at interest for her by C. D. and G. A. Sackett, of New York, both of whom died in March, 1858. That she received the income thereof for her support, and boarded and stayed with her children from time to time as she was inclined. That the defendant induced her to reside with him at Jacksonville, under the pretext of obtaining ten or twelve per cent. interest on her money, and to withdraw all her moneys from New York, he pretending that he would thus invest them in Illinois, and also in the purchase of a residence for her. That she accordingly came to Jacksonville in the spring of 1856, and resided with him till her death in December, 1856, being then about eighty-five years old. That within about eight months after her removal, her funds were almost entirely withdrawn from the Messrs. Sackett in New York, and were placed in defendant's hands to and for her use, and to the aforesaid intent, uses and purposes. That upon her death, "defendant carried her body to the city of New York. Her funeral took place at once at Trinity Church, and after the funeral the said defendant promised to see such of the heirs as were in the city the next day, and give an account of the property and effects of his mother. He stated he was stopping at the Astor House, refused the hospitalities offered him by his several brothers and sisters who were in the city, and stated that he would meet them at the office of the Messrs. Sackett the next morning. He, failing to do so, some of the Clarke v. Quackenbos et al. heirs called at his hotel, and lo! he had started that same morning at an early hour for Jacksonville, without leaving a message to or for the heirs, or any of them. Different ones of the heirs have written to him from time to time and frequently, inquiring as to his mother's estate, but he has not seen fit or found it convenient to answer any of their letters, and gives out and pretends at Jacksonville and elsewhere, that his mother left no property or estate of any kind or nature." Bill charges, that defendant, about 19th of February, 1856, purchased certain real estate in Jacksonville, described in the deed, of which a copy is filed. That the same was purchased and paid for with the funds of said Eleanor Clarke, and the deed "ought in good faith to have been made to her, but was fraudulently and at his instance made to him, and he in equity and good conscience is a trustee, holding the legal title to the same in trust and to the use of" her heirs at law. Bill states, that to show the unprecedented frauds defendant is practicing upon complainants, they file a paper, giving a true statement of facts, and showing the relations of defendant to complainants, on the principles of trust and fair accounting, and call upon him to state on oath all that he knows of the allegations in their bill and the facts stated in said exhibit, beginning at date May 26, 1854; to state the amount of money he received from time to time of the Messrs. Sackett or of his mother, and whether the letters, papers, orders, etc., purporting to be signed by her are genuine, and the receipts, letters and vouchers purporting to be signed by him were so signed, and the letters purporting to be written to him were received, and the checks referred to, drawn and indorsed as stated, and whether a certificate of the Messrs. Sackett, copied in said exhibit, was in defendant's handwriting, and the papers, orders, letters, and accounts of the Messrs. Sackett are true and authentic, and the disposition he has made of the bonds and mortgages referred to, and what he received thereon, and when and from whom, and whether any of them are unpaid in whole or in part. Bill charges, that defendant has received in cash, bonds and mortgages, more than $15,000, under the pretext of investing it for the use of his mother, and calls upon him to state what he has done with it, whether he now has it, or any part of it, and what loans or investments in property of any kind he has made of the same. Bill charges, that there must have been a correspondence in writing touching the management and disposition of his mother's affairs, and that it came into his possession upon her |