
    Wilkins v. Irvine.
    1. A -written license, without seal and unacknowledged, to enter upon and imbed water pipes in the land of another, with privilege to enter and repair them, creates no interest in, nor incumbrance upon the land such as will disable the owner thereof from making a good and sufficient deed conveying a good title thereto.
    2. A vendee of real estate protected as an innocent purchaser without notice, may not, at his option, elect to waive such protection, and rescind the contract of purchase for an alleged incumbrance not aifeeting the validity of the title.
    Error to the Superior Court of Cleveland.
    Defendant in error, T.. M. Irvine brought an action in the Superior Court of Cleveland, against Horace Wilkins,, plaintiff in error, on a written contract for the recovery of money. On the 18th of September, 1873, Wilkins bought of Irvine the undivided half of a tract of land, described in-the petition, situated in Newburgh township, Cuyahoga; county, owned by T. M. Irvine and IT. A. Massie, and agreed to pay therefor twenty-one thousand one hundred and twenty-five dollars, part in money, and part by the assumption of the payment of Irvine’s liability on certain purchase money notes, given by Irvine and,Massie to one-John Brqoks, from whoi'n they had purchased the land.. The deferred cash payments were $2,883.18, due October 8,. 1873, and $3,000, due November 17,1873, both sums to bear interest from date. Irvine obligated himself on the payment of the purchase money by Wilkins, to execute to him, in fee simple, a good and sufficient deed for the undivided half of the laud. Irvine alleges both sums of money to be-due; and, with his petition, filed in court what he claims-to be a good and sufficient deed for the land, for the use and benefit of Wilkins; admits the payment- on the contract of three sums, amounting in all to $1,350, and prays judgment for the balance, $4,607.22, which he claims with, interest.
    To this petition Wilkins interposed an answer and cross-petition, admitting the execution of the contract, the payments made, and that he promised as stated, denying all other allegations of the petition. To his cross-petition he-makes II. A. Massie, John Brooks, and the Cleveland Rolling Mill Company defendants. Wilkins charges that Irvine- and Massie purchased the land from John Brooks, and that while Brooks was the owner of the land, he and others entered into an agreement with the Cleveland Rolling Mill Company, of which the following is a copy ;
    “ Cuyahoga County, Ohio.
    Whereas, the Cleveland Rolling Mill Company are desirous of laying and maintaining permanently a pipe from their works in Newburgh to the Cuyahoga- river, for the-purpose of supplying their works with water, to be laid on a line as shown by a survey now shown as made by Geo. H. Hyde, engineer, and dated September 26, 1872, which line crosses land owned by us., Now, for good considerations, we hereby grant to said company the right to come upon said lands, and so lay said pipe, at a depth of not less than two feet, and there permanently to maintain the same with like privilege at any time for repair, relaying, or removing. It being hereby especially agreed by said company, that they will do this work in a careful manner and to be responsible for and to pay to the undersigned, respectively, any damages occasioned by said company or their .agents in so laying, or by said pipes in bursting or otherwise, or that may result in any manner to said lauds or ■owners, under or in consequence of this license.
    Signed, JOHN BROOKS, and others.
    We hereby acknowledge ourselves to be bound by the ■conditions of the above agreement on our part to be performed.
    Signed, Cleveland Rollins Mill Company.
    By H. Chisholm.
    
    It is substantially alleged in .the cross-petition, that Wilkins bought the land for the purpose of alloting and selling for dwelling-house lots, etc., that the Cleveland Rolling Mill Company were at the date of the contract, and had for a long time prior been in the occupancy and possession ■of a portion of the land by occupying it with a water-pipe fourteen inches in diameter, laid under the surface from two to three feet deep, used for the purpose of conveying water from the Cuyahoga river to their mills, under, and by virtue of the foregoing agreement in writing between Brooks and the mill company. It is claimed that this license and the rights acquired by virtue of it, constitute an incumbrance upon the land, thereby rendering the land of little value, and disabling Irvine from making a good and sufficient deed for the land. That Wilkins, prior to his purchase, had no knowledge of the existence of the license or occupancy of the land by the mill company, and that the same was known to Irvine and Massie from the time the pipe was laid in the land, and in fraud of his rights, and intending to defraud him, Irvine fraudulently represented to him that lie could give him a good title, etc.; that he was induced by the fraudulent representations of Irvine, to enter into the contract ; that as soon as he discovered the- Rolling Mill Company held such license and were occupying the land with their pipes, he notified Irvine, and in writing demanded a rescission of the contract. The cross-petition prays for a rescission of the contract, for general relief, and for repayment of money paid by him on the contract.
    The defendants, Irvine, Brooks, and the Cleveland Rolling Mill Company, each interposed a general demurrer, and Massie answered denying all knowledge of the license and fraud charged against him. The court sustained the demurrer of Irvine and Brooks, overruled the demurrer of the Rolling Mill Company, dismissed the cross-petition as to Brooks and Massie, and entered a judgment for $4,779.89, in favor of Irvine. To each and all of which orders and judgments Wilkins excepted.
    The ease was taken on error to the superior court in general term, and the judgments at special term there affirmed. Plaintiff’ in error prosecutes his petition in error here to obtain a reversal of the judgments respectively entered in the courts below.
    There are many assignments for alleged error on the record, but we think the controlling questions, for consideration, are substantially covered by two of them, viz:
    
      First. That the court erred in sustaining the demurrer of Irvine to the cross-petition and amended answer of Wilkins.
    
      Second. That the court erred in sustaining the demurrer of Brooks to the cross-petition of Wilkins.
    
      Hamilton ¡j¡¡ Denison and Tyler $ Denison, for plaintiff in error:
    As to the effect of a parol license, see Wilson v. Chalfant, 15 Ohio, 248; Sullivant v. Comm’rs, 3 Ohio, 89; Le Ferre v. De Ferre, 4 Sergt. & Rawle, 241; Derick v. Kern, 14 Sergt. & Rawle, 267; Prince v. Case, 10 Conn. 375 ; Hiatt v. Morris, 10 Ohio St. 523; and see 1 Ohio, 251; 3 Ohio, 294.
    
      We say that for this court to hold that, on the principle that gives a good title to an innocent purchaser of real estate without notice, Wilkins, the plaintiff in error, would .get an absolute and unincumbered title to the premises contracted to him by Irvine, under the deed tendered him, and that, for that reason, he can not demand a revocation of the contract for the fraud, concealment, and deceit complained -of in Wilkins’ amended answer and cross-petition, would be to force him, willingly or unwillingly, and innocent of any fraud in the premises, to help Irvine perpetrate a fraud on the Rolling Mill Company, and to enable Irvine, taking advantage of his own wrong, to enforce his contract against the plaintiff in error.
    Irvine would thus be allowed to invoke against plaintiff 'in error a principle of equity, declared for the benefit of innocent purchasers of real estate, for the prevention of fraud, in order that he might, in violation of equity, perpetrate a fraud on the Rolling Mill Company, and compel plaintiff in error to assist him in such perpetration. In all the various forms in which it maybe stated, the question involved in this case resolves itself to this : Whether Irvine has a right to insist that Wilkins shall, nolens volens, assist him in the perpetration upon the Rolling Mill Company, of such fraud, or whether, bringing all the parties before the court, Wilkins may insist that he shall not be made an instrument of fraud against the Rolling Mill Company in the hands of other parties, but that justice and equity shall be meted out to himself and all the parties in the case, as its circumstances and needs require. Courts, certainly, should not insist that a party shall avail himself of every equity he might maintain for self protection, in an action, for the purpose of enabling another to work a fraud upon a third and innocent party possessed of vested rights.
    If Wilkins chooses to give up his contract, rather than •stand on it and insist upon his rights as an innocent purchaser, without notice of the lights of the Rolling Mill Company, thereby working a wrong upon it, for the benefit ■of Irvine, it would seem to us equitable and just to allow him to clo so, on the part of the court, and it would appear honest and fair, on his part, that he should prefer that choice.
    
      Marvin, Hart &¡ Squire, for defendant in error:
    The parol license created no incumbrance. 1 S. & C., Stat. 458-467; section 557 of the code.
    A license which would run with the land, must be in some manner of as high a nature as that which under like circumstances would pass the title'to the land and give to the one in possession under it the fee.
    If it falls short of this, then it can not be said to run with the land, and if it can not run with the land, a conveyance of the land without reservation would put an end to the license. Miller v. Railroad, 6 Hill, 64; 4 M. & W. 538; Wasliburne on Real Prop. 381, § 14; Id. 399, 400, and authorities there cited.
    Judge Selden, in 29 N. Y. 639, says : A permanent interest iu land, even by way of easement can not be created by or under a parol license.
    The doctrine that an executed license, as between the licensor and licensee, is irrevocable, does not receive the favorable consideration of any number of our state courts, and in England it is not recognized. In Massachusetts it is held that a license executed or unexecuted is revocable at the will of the licensor. Ruggies v. Lesure, 24 Peckr 187; Owen v. Field, 12 Allen, 457. In Connecticut the doctrine is considered settled by Prince v. Case, 10 Conn. 375. In New Hampshire, by Huston v. Laffee, 46 N. H. 507, and 24 N. H. 176. In New York, by 29 N. Y. 639.
   Ashburn, J.

The facts alleged in the petition and admitted by the answer, would entitle the plaintiff below to & money judgment, unless the legal effect of the facts set up in the cross-petition is such as to require a court of equity to interpose and grant a rescission of the purchase-money contract.

From the nature of this case, the general charge of fraud against plaintiff alleged in the cross-petition, can avail defendant, only when it shall appear that the alleged incumbrance upon the land is such as affects, not the money value of the land, but the title thereto to his prejudice. The vital force of all other facts hinges upon this one.

The grounds and charge upon which a rescission of the contract is claimed, are that the license to, and occupancy of, the Cleveland Rolling Mill Company create a permanent incumbrance upon the land, to which is added the ' equitable circumstance that in consequence of such incumbrance the land for allotment and division into dwelling-house lots is rendered comparatively valueless.

Erom two considerations a majority of the court think a case for a rescission of the contract is not made by the cross-petition.

I. An interest in, or permanent incumbrance upon, land in this state, can only arise from some of the modes provided for or recognized in law. If it exists in this case, the incumbrance was created by a writing without seal and unacknowledged and unaccompanied by actual possession. The statute, S. & C. § 6458, provides, “ that when any man . . . shall execute, within this state, any deed, mortgage, or other instrument, by which any lands, tenements, or hereditaments, shall be conveyed or otherwise incumbered in law, such deed, mortgage, or other instrument of -writing-shall be signed, sealed, etc., and such signing and sealing shall be acknowledged by such grantor or maker in the presence of two witnesses, who shall attest such signing, etc.”

The writing claimed in the cross-petition to create upon the land a permanent incumbrance in favor of the Rolling Mill Company, is at most a license to enter upon the land for a specific purpose. It has none of the characteristics and sanctions provided by the statute creating an incumbrance that could possibly impart to the instrument a quality to run with the land. It gave the Cleveland Rolling Mill Company no dominion over the land, nor did it create, in its favor, an easement in the land. If its terms had been-violated by Brooks or Ms grantees, the jurisdiction of a court of equity could not have been successfully invoked to enforce a specific performance. The remedy, if any it had,, would have been an action for damages.

A license to do a particular thing, does not, in any degree, trench upon the policy of the statutes requiring that contracts respecting the title to land shall be by deed or other written instrument under seal. They amount to no more than an excuse for the act, which would otherwise be a trespass. A permanent right to enter upon and hold another’s laud, for a particular purpose, without his consent, is an important interest which should pass only in the mode and by the instrumentalities provided by law. '

The written license executed by Brooks to the Cleveland Rolling Mill Company, being without any of the characteristics of a deed, does not create such an incumbrance' upon this land, as to create an equity in favor of the defendant, Wilkins, which will authorize a rescission of the contract.

II. Section 8 of the statute already referred to (S. & 0.. 467) after providing for the recording of all other deeds and instruments of writing for the conveyance or incumbrance of any lands, etc., then provides :

“ And if such deed or instrument shall not be so recorded within the time herein prescribed, the same shall be deemed fraudulent, so far as relates to any subsequent bona fide purchaser, having at the time of making such purchase no knowledge of the existence of such former deed or other instrument of writing.”

The instrument in writing under which it is claimed this incumbrance arises, never was recorded, and is not an instrument authorized to be recorded. Wilkins purchased the land ignorant of the existence of such license, and without knowledge that the Cleveland Rolling Mill Company occupied any portion of the land by pipes secreted in the ground, or otherwise. His relation to the Rolling Mill Company and any supposed rights it may have from or under the license, is that of an innocent purchaser without notice, and. he is therefore protected. •Whatever might be the rights and liabilities of the original parties to the writing, the secret claim of the Rolling Mill Company can in no way affect the rights of Irvine or Wilkins.

The policy of the law is that titles to land, when affected by written instruments, shall appear upon the appropriate record, so that all may be informed who hold incumbrances, their character, and where the title reposes or is vested. But is this secret license mode of incumbrance to be sustained? If so, incumbrances might frequently be found to exist, against which no vigilance could guard, no diligence protect. Our records would cease to be reliable guides. To avoid all uncertainty, to notify all wishing information in regard to land titles, our registry laws were created, and their purpose can not be defeated by claims of the character we are considering.

No notice to Wilkins of the claimed incumbrance can he implied, because the writing was not recorded, and the pipes were hidden from view in the ground. The Cleveland Rolling Mill Company had no visible open possession of any portion of the land. At best, it had, under the license, a bare right to enter to repair the pipes when such need occurred. Hence, Wilkins is an innocent purchaser, .and in relation to him there is no such incumbrance on the land as will affect the title Irvine has tendered him.

No case for affirmative relief against Brooks is made, so that his demurrer to the cross-petition was rightfully sustained. As no valid ground for a rescission of the pur•chase-money contract between plaintiff and defendant exists, the judgment of the superior court in general term, .affirming the judgments at special term, is affirmed.

Day and Wright, JJ., dissented.  