WC Dillon & Co., Inc. v. Barton

WHITE, P. J.

Defendant, a subdivider, conveyed three residential lots to the plaintiff by grant deeds which reserved an easement in the following language: “Reserving therefrom unto the Grantor herein the described property for reservation of future road purposes the southerly 30 feet . . .” of the described lots. Prior to the conveyances to plaintiff of said lots, numbered 12, 13 and 14, defendant owned Lots 12

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to 18 inclusive which were in a series numbered from west to east. The apparent purpose of the reservation was to provide for an east-west roadway or street along and over the southerly ends of the lots mentioned. After the conveyances to plaintiff, defendant conveyed Lots 15 and 16 to third parties by a deed which contained no reservation of any easement for road or street purposes. This latter deed made no reference to the easement reserved in plaintiff’s deeds. The purchasers of Lots 15 and 16 constructed improvements and fences which apparently indicated no intention to provide for any street or roadway over the southerly portion of their property.

Plaintiff filed this suit to quiet title, alleging that it consented to the reservation of the easement in reliance upon the defendant’s representation that the easement would be used only if defendant found it necessary or convenient to provide for a road or alley in order to sell his remaining lots lying to the east, that is Lots 15 to 18 inclusive. Plaintiff alleged that the subsequent sale of Lots 15 and 16, with no provision for the easement, terminated all of defendant’s right, title and interest in and to lots 12, 13 and 14, and operated completely to extinguish the servitude.

The record in this ease discloses errors and irregularities which render it necessary for us to reverse the judgment. The sole party defendant named in the pleadings is John A. Barton. The trial was commenced on January 25, 1957. The findings recite that John A. Barton died on January 17, 1956. The record, however, discloses no substitution of parties. In the captions of the findings of fact, conclusions of law and judgment the defendants are designated as James William Barton and Francis MeCoaeh Barton “as individuals and as executors of the Estate of John A Barton, Deceased.” In appellant’s opening brief it is stated that John A. Barton was the sole party defendant and that there was never any substitution of parties in the trial court. The record discloses no substitution of parties. In respondent’s brief we are told that in July, 1956, a stipulation was signed providing for the substitution of the defendants as designated in the findings, that plaintiff’s counsel promised to file the stipulation and obtain an order of court thereon, but that he failed to do so. The attorney who represented plaintiff in the trial court, and who prepared its opening brief on appeal, has since died. Present counsel for appellant were later substituted.