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Watkins et al v. Hall, et al.

recorded proceedings of the board, and some of the other evidence given, indicate that a change of site had been contemplated and discussed for some considerable time. At one time it was thought that the school house should go to some point on the Granville road, but the latter board settled on a site once occupied about twenty years ago, north of the present location, and one hundred and sixty rods from the north line of the school district. On this old site there had been a school house which was used for years, but it was destroyed by fire, and when a new building was provided for, the one in controversy was erected and furnished, which was about thirteen or fourteen years ago. The location is near the geographical center of the district, on a good public highway, intersecting the Granville road, and extending west of the hills-or, what has been called the “ foot-hills.”

The lot so selected, and on which the school house was erected, while not at first all that could be desired as to grade and condition, has, from time to time, been so improved and graded that it became and is a suitable location for the school. The building itself is all that is desired as to material, size, workmanship and inside equipment. Indeed, so satisfactory is it in all respects, that the same materials are to be taken down, and removed to a northern lot, and there a building of the same size, form and equipment is to be reproduced. The present lot has proper and necessary out-buildings, grown shade trees-in short, no complaint is made of the building, its appurtenances or surroundings.

The plaintiffs who are residents of this district, interpose and object to the taking and removal, and ask that the board of education be enjoined from doing these things.

We have heard the case on the evidence, and we have stated some of the facts which are disclosed by the testimony. It seems that the only ground which the board has for its action-the only one, at least, brought to our attention, is that the new place selected is more accessible for the school youth of the district, more convenient for the greater number; and evidence has been heard as to what is the number of school youths in the north part, and the number in the south part of the district. At one time, it seems, there was a majority who would be better served by a schoolhouse where it now is. At another time, a majority might be conveniently accommodated by a place one hundred and sixty rods from the north line. But, with the very small school attendance in this district, the majority either way has been exceedingly small.

Under all these circumstances, what are the rights of the parents who are interested in having the building remain; and with this question, what power has the court to restrain

the conduct complained of? It is very clear that so far are the control and management of the school interests—the selection of site, and erection and equipment of buildings-committed to the judgment and discretion of the board of ed. ucation, that a court cannot interfere with the exercise of such judgment and discretion, except where it is abused or overreached, or where the conduct or action of the board proceeds from fraudulent motives, or improper purposes, which would be the same thing in law as a gross abuse of discretion.

If there was no building on the present site, and it was simply the exercise of a choice of location, we would have no right to control or restrain the board in the exercise of its choice, no matter how flagrant the wrong to many in the district.

But that is not this case; without any well-founded reason, the board

Seneca Circuit Court

proposes the expenditure of public money to take down a satisfactory building, with all its equipments, and remove them to another and somewhat distant point, having no better natural surroundings, and all for what purpose? Why, it is said, the trend of the school youth is toward the north end of the district, and that it will, or may have, a majority that will be best accommodated at the north end.

When they came to count the noses (so to speak), for one year, there may have been two or three more on one side than the other. The next year, by reason of arrivals at majority, or, for other reasons, this majority i6 lost to the other side. And so it seems to have alternated for two or three years prior to this trial. The same is likely to continue. The favored parents in the south part of the district may be able to number more of their household gods this year than they can in the north. The very next year, removals, etc., may turn the scale to the north. So it seems to follow from the proposed action of this board, in order to be consistent, that, as these changes may run one way or the other, the school house should be taken down and brought nearer to the doors of this vacillating majority.

This course, the one proposed by the board, is not called for, nor can a good excuse be found for it. It is, in our judgment, an abuse of their authority and discretion. While we find no evidence of any corrupt or dishonest motive behind this proposed removal, we can find no reason for it; and on these facts we hold that the exercise of the power contemplated by this board would be an abuse of that discretion which is a subject-matter for the control of this court.

The injunction is granted, and made perpetual at the costs of the defendants.

EVIDENCE-PARTY WALL-STATUTE OF FRAUDS.

(Seneca Circuit Court, December Term, 1896.)

Day, Price and Finley, JJ.

JOHN A. HALL V. IDA GEYER. 1. ADMISSION OF ORAL STATEMENTS OF AN ALLEGED DONOR TO PROVE A GIFT OF REAL ESTATE. Oral statements or declarations of an alleged donor are not competent, as against

innocent third persons, to prove a gift of real estate, or of an appurtenance to real estate; nor, are such declarations admissible in evidence, where they have a tendency to discredit the title to real estate theretofore conveyed, in

due form, by such alleged donor. 2. PAROI, AGREEMENT FOR THE ERECTION OF A PARTY WALL.

w, intending to erect a three story, brick 1 uilding on his lot, entered into a parol

agreement with H, the owner of the adjoining lot, for construction of a party wa 1, upon the terms and conditions: That the wall was to be located and constructed, one-half on each side of the division line between said lots; was to be completed and the entire cost of construction borne by W, and H,was not to be liable for any portion of such cost, until he used it in the construction of an adjoining building on his lot, when he was to become liable for the payment of one-half such cost. The wall was completed by W, in 1874 in accordance with the stipulations of said agreement, and in 1894, H, made use of the wall in the constuction of a building on his adjoining lot: Held,

Hall v. Geyer.

3. There was such performance of the agreement as relieved it from the opera

tion of the statute of frauds. 4. The stipulations and conditions of the agreement, all together, constituted

an entire contract, and the burden of showing that one provisiou thereof became severed, so as to become independent and personal, rested on the party

asserting such claim. 5. The wall was and is real estate; so the contract had reference to and was for

and concerning an interest in real estate, and its covenants were of such

character and import as to run with the land. 6. Upon the completion of the wall, the stipulation for Hall to become liable

for one-half the cost of it, when used for the purpose of a building on the adjoining lot, unless severed from its context and made independent, became an appurtenance of the said real estate and passed to the assignee thereof.

ERROR to the Court of Common Pleas of Seneca county. DAY, J.

The action in the lower court, was by Ida Geyer against John A. Hall, and was to recover one half the cost of building a party wall, erected on the division line of lots 104 and 105 in the city of Tiffin. Geyer asserted a right of recovery by reason of her ownership of lot 105 and the building thereon, including the wall in question, the right and title of which she acquired directly, by proper conveyances from different persons in line from Lewis Wisler, who was the owner of lot 105, and constructed the building thereon, in 1874-5. She asserts in her petition that before the construction of the building and wall in question, Wisler first obtained an easement or right to construct the party wall from John A. Hall, who was then and now the owner of lot 104, with the understanding and agreement that Hall was not to incur any present liability on account of the wall or until he used the same for purposes of an adjoining building; at which time and not before, he was to pay one-half the expense of constructing it. She shows that in 1894 Hall did make use of the wall for his adjoining building as a party wall, and that he refuses to pay for the same although requested to do so.

Hall's answer is first, in effect, a general denial of plaintiff's claim; denial of the alleged agreement between Wisler and himself, by which he agreed to pay one-half the cost of the wall to the owner of the building, and a denial of all liability in the premises. Pleading further, Hall asserts that Lewis Wisler, the owner of lot 105, and the builder of the wall, while such owner released and discharged him of all liability on account of the said wall. There is another defense set up, that of res adjudicata, i. e., that the identical question made in this case was litigated in a former case and determined upon a bearing on the merits, by a court having jurisdiction of the subject matter, so it cannot with propriety be further litigated. A reply denies a release and discharge of Hall from liability, by Wisler, and denies former adjudication.

The issues thus joined were tried to the court, the parties waiving a jury, resulting in a finding and judgment in favor of Mrs. Geyer for $492.20, after the overruling of a motion for new trial. Hall excepted to all this, secured a proper bill of exceptions containing all the evidence had on the trial, and showing the ruling of the court on the admission of evidence, filed it in this court, with a petition in error, and seeks a reversal of the judgment and a new trial of the case, because of errors, said to be apparent, on the face of the record.

It is said in the petition in error that the court of common pleas erred:

Seneca, Circuit Court.

1. In admitting and in rejecting evidence on the trial, to which exception was taken and noted at the time.

2. That the finding and judgment is not supported by sufficient evidence, and is contrary to law.

The assignments of error in the petition are nine, as numbered in the petition in error, but they are all properly included and grouped in the two I have stated, viz.: Errors in the matter of ruling as to the admissibility of evidence, and that the finding is not supported by suffcient evidence.

1. As to the errors claimed in the ruling on the admissibility of evidence: Dr. H. C. Wells was offered as a witness in behalf of defendant and asked the question, in substance, “What, if anything did Lewis Wisler tell you, in 1880, as to any amount due him from Hall for this party wall?" On objection by counsel for plaintiff, the court ruled the witness should not answer the question. It was said, “if the witness was allowed to testify, he would testify that in 1880, Lewis Wisler told him, that he had donated one-half of the wall of the building to John A. Hall." There was no error in this. The answer was properly ruled out on, at least two grounds: 1. It was not competent to show the oral declarations of Wisler discrediting in some degree, the title of property which he before that time, had owned, and under general covenants of warranty, conveyed away. 2. It was not competent to show a donation of real estate, which this wall is, by the oral declarations of the alleged donor; especially where the alleged donor had before that time, by a proper deed, solemnly executed, conveyed the same real estate to another person.

Again John A. Hall was produced as a witness in his own behalf, and asked the question: "State if Harry Wisler was present at any time when you and his father, Lewis Wisler, made any arrangement or agreement respecting this party wall?” The question was objected to and the answer excluded, to which ruling an exception was noted. was stated that Mr. Hall, if permitted, would testify "that he had but one conversation with Lewis Wisler, as to the building of this party wall; that Harry Wisler was not present at that one; and that witness would state the whole contract and agreement between Lewis Wisler and himselt; that the agreement was, that Hall was not to pay anything for the stone part of the wall, at any time; that all Hall was to pay, was to be paid to Lewis Wisler, and was to be: One-half the cost of the brick part of the wall, and only of so much of said brick part as Hall might thereafter use, to be paid for when used.” The question itself was a very innocent one and very likely proper; yet the information likely to be elicited by it, could not be important, as bearing on any of the issues in the case, and therefore its exclusion could not be prejudicial. It would seem, from the statement of counsel, as to what the answer would be, that counsel was expecting under cover of a very innocent question, to prove a great deal more than the law of evidence would allow, and very much of which testimony the statute expressly incapacitates Mr. Hall to give. Hall was a party, and plaintiff was claiming as an assignee of a deceased person, and section 5242 Revised Statutes, precludes him from testifying at all, unless he first brings himself within some one of the exceptiors stated in that section, which was not done or attempted. In view of the fact that the information called for by the question was not important, had been given by the witness before that, and its exclusion non-prejudicial to plaintiff in error, we cannot find or say the lower court was in error. Hall was further asked, see page 15 of the bill of exceptions,

Hall v. Geyer.

whether Mr. Lewis Wisler at any time released him from the obligation to pay for one-half of the wall. This was also properly excluded. Section 5242, as we have seen, made him incompetent. Death had closed the mouth of Lewis Wisler, and the law put a seal on that of Hall.

2. Was the finding and judgment not supported by sufficient evidence, and therefore contrary to law? is the remaining question.

Most of the material facts are agreed upon by the parties, and stated in the bill of exceptions. These facts are, in substance : That Mrs. Geyer owns the lot 105 with the appurtenances, that it came to her by proper conveyances from Lewis Wisler, now deceased ; that Hall, then and now, owned lot 104; in 1874 Lewis Wisler built on lot 105 a three story brick building, now, and for years, used as a hotel; the south wall of said building stands one-half on and along the south line of lot 105, and one-half on the north line of lot 104. One-half the value of the wall is $592.20. It is testified by Henry Wisler, a son of Lewis, that before the building was undertaken by his father, there was a conference and transaction between the father and Hall, with reference to the building of a party wall; that Hall assented to the placing of the wall, one-half of it, on the lot line of lot 104; gave permission to occupy sufficient space on his lot 104, for that purpose, but stipulated that Wisler was to be at the entire expense of building the wall, and that he, Hall, was not to be liable for any portion of such expense and was not to pay any part of it, until such time as he desired to use the said wall for his own building; when he was to pay one-half of the original cost of it. It is undisputed that Hall, in 1894, erected a building on lot 104 and used the said wall as one of the walls of said building, and he has paid nothing for the wall to any person. The testimony of Henry M. Wisler is not controverted, otherwise than by Hall, who says Henry M. was not present when the contract was made. These facts, admitted, and proven by the weight of evidence, abundantly show a contract concerning real estate—a party wall-in which some title or right in the nature of an easement, was acquired in Hall's lot 104, upon which to rest one-half of a division wall, and for lateral support, so long as the wall should endure; and Hall acquired a title or right in the entire wall, upon certain stipulated conditions, to use the wall for his own proper purposes. The contract, it is true, in the beginning rested only in parol; but there was a good consideration passing, and it was subsequently so far executed as to relieve it from the imputation of the statute of frauds and perjuries; so that as a matter of law, it constituted a valid enforceable contract for title and interest in real estate—a contract having reference to land and concerning title and rights in land, and of such nature and import, as readily indicates its character and fixes its place in the classification of contracts, as one of those which, in legal parlance and in consonance with the great weight of the decisions on the subject, are denominated “Contracts or covenants running with the land.” The portion of the agreement on the part of Hall, in which it is stipulated he was to be free of liability for any part of the cost of constructing the wall, until he used it, at which time he was to pay his portion of the expense of constructing it, was part of the contract, one of the stipulations of it, and the other stipulations and conditions, all together, constituted an entire contract or covenant, all of which would have reference to an interest in and would follow the land; unless there was something in the contract itself which would separate that pa of the contract from its context and make it independent and personal between the contracting parties, or, unless the

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