Page:Harvard Law Review Volume 9.djvu/389

RECENT CASES, 361 the matter, though, as remarked in a note by the learned reporter, the exact point was not decided. As to " Joint Debts Acts," see the opinion of Mr. Justice Bradley, in Hallv, Lannitig, 91 U. S. 168, cited in Nathanson v. Spitz, supra. Property — Adverse Possession by Tenant in Common. — Land was devised for life with remainders over, and plaintiff and defendant were remaindermen, and entitled to claim as tenants in common. Held, this did not preclude the defendant's acquiring the whole land by adverse possession, she having inherited the land from her father, who claimed under a deed from the life tenant purporting to convey a fee, and having held adversely to plaintiff for the statutory period. Mole v. Folk et al., 22 S. E. Rep. 882 (S. C). A co-tenant may oust his fellow by adverse claim, though it is hard to show a dis- tinct intention to do so. In the principal case such an intention appeared. Defend- ant inherited a fee, as she thought, absolutely from her father, and had probably never heard she was entitled under any instrument but that under which her father held. She claimed adversely to plaintiff and also to herself, so to speak. There is no ques- tion here, as in Board v. Board, L. R. 9 Q. B. 48, of estoppel from claiming adversely, as defendant never claimed in remainder under the instrument giving her that right. Property — Application of Maxim " Pendente Lite Nihil Innovetur." — Plaintiff brought a bill to recover land on the ground of fraud, and set out the facts on which he relied to show fraud. Later, an amendment was allowed setting out additional facts to show fraud. On these additional facts plaintiff obtained a decree. Between the time of filing the bill and its amendments, defendant conveyed to a third party who had notice of the facts relied on under the original bill, and, being satisfied that those facts were insufficient to show fraud, had purchased the estate. Held, as the amendment did not change the subject matter of the suit, but merely spe- cified additional matters of proof on the same ground of recovery, i. e. fraud, the suit was the same throughout, and the doctrine of lis pendens applies. Turner v. Houpt, 33 Atl. Rep. 28 (N. J.)._ The court begins by remarking that the maxim oi lis pendens is not based on implied notice to all the world of the facts which constitute the grounds of the suitor's claim, but is only notice of the existence of a suit in regard to the matter in dispute, and that where the suit is in regard to pro])erty, people purchasing the property do so at their peril as to the result of the suit. Pomeroy, 2 Eq. Jur. §§ 632 a, 633, and cases cited. It follows from this, that the purchaser's notice of the facts to establish fraud in the bill as originally filed in the case at bar, and his reliance on them, are immaterial as regards the doctrine of lis pendens, and that the vendee brought pende?2te lite, as the insertion of further allegations of the same character as those put in the original bill did not alter the identity of the suit as to the parties, subject matter, or purpose, and conse- quently that the suit under which plaintiff won was the same as that pending at the time of the purchase of the land. Gibbon v. Dougherty, 10 Ohio St. 365. Property — Easement — Prescription. — Light had come to the plaintiff's win- dows over the defendant's premises for a period of nineteen years and nine months. The defendant then started to erect a building that would interfere with the light. The PrescriiHion Act made no interruption of user effective which existed less than one year. Held, that the plaintiff had no easement of light at the time of filing the bill, and therefore the court would not enjoin the defendant from building. Battersea v. Commissioners, [1895] 2 Ch. 708. Sect. 3 of the Prescription Act, 2 & 3 Wm. IV. c. 71, provides that the right to light shall become absolute after twenty years' enjoyment without interruption, and sect. 4 provides that interruption must be at least one year in duration. This has been con- strued to make the defendant powerless after the end of the nineteenth year to prevent the acquisition of an easement over his property at the end of the twenty years. Flight v. Thomas, 8 CI. & F. 231. This might make a verv hard case on the defendant, who, during the twentieth year, should erect valuable buildings in ignorance of the plaintiff's claim, only to be compelled to remove them at the end of the year. It would not seem a matter to be regretted that prescription acts in this country do not contain a provision similar to sect. 4 of the English act. Property— Exception and Reservation — Profit k Prendre. — A person conveyed his mill-site, situated on a dam, " excepting and reserving the right of running logs through the premises from the river, and of erecting and maintaining a log-sluice from the mill-pond, about five feet in width." There was no sluice-way existing at the time of the grant. Held, the grantor thus obtained rights, either as an exception of a part of the thing granted, or 2. profit h prendre^ which he could convey independently of