
    Samuel C. Dey, App’lt, v. Minnie Prentiss, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 16, 1895.)
    
    1. Deed—Covenants.
    A covenant in a deed that the granteenshall keep in-repair the division fence between the land conveyed and the adjoining land of the grantor, runs with the laud.
    2. Line vences—Cost of construction.
    An owner of a lot, burdened with a servitude of constructing the entire line fence, cannot recover from the adjoining owner the cost of a portion of such fence, without showing that his land has been released from the servitude.
    3. Same—Estoppel.
    Where the owner of a lot is bound to maintain the entire line fence, the adjoining owner is not estopped from asserting such liability by the decision of the fence viewers, apportioning the part of the fence to be built by each owner, though he consented to their appointment.
    4. Appeal—First instance.
    The objection that a defense was not available under the pleadings, cannot be raised for the first time on appeal.
    Appeal from a judgment, entered on a verdict in favor of defendant, rendered by direction of the court, and from an order denying a motion for a new trial, made on the minutes.
    
      G. W. Harding, for app’lt; H. H. Belya, for resp’t.
   Lewis, J".

This action was brought to recover pay for building the defendant’s portion of a division fence between the lands of the parties, situate in the town of Hume, Allegany county. It was originally tried in a justice court, where the plaintiff had a verdict. The defendant appealed, arid the case was tried in the county court, where a verdict was directed for the defendant, of no cause of action.

It is alleged in the plaintiff’s complaint that the parties owned adjoining land; that they agreed, upon the portion of the line fence between their lands which each should build; that the defendant neglected and refused to build her portion of the fence for the period of more than one month after being requested so to do by the plaintiff; that the plaintiff thereafter built the same, at an expense of $12.83, and that, by virtue of the statutes relating to division fences, the defendant became liable to pay him said sum of money. Among other defenses interposed by the defendant, was a general denial.

It appeared upon the trial, that the lands of the parties formerly belonged to one Daniel Leaver. Leaver obtained his title by a deed from one Austin Partridge in the year 1855, and entered into possession thereof. Out of the land so conveyed to him by Partridge, Leaver deeded the plaintiff’s premises, of about four acres, to one Joseph Luckey, by deed dated March 1, 1863. The deed to Luckey contained the following covenant: “ And the said Luckey is to build, and keep in repair, all line fences between said lot and lots adjoining, owned now by said Daniel Leaver.” Luckey entered into possession and occupied the land so conveyed to him many years, and until he died. Defendant’s lot was a part of the farm not conveyed to Luckey by Leaver, and it adjoined the piece of land conveyed to Luckey. Luckey built and maintained, up to the time of his death, the line fence between his lot and the land now owned by the defendant. A Mr. Weaver occupied plaintiff’s lot for ten or twelve years after the death of Luckey under a deed from one Charles Flenagin. Weaver built and maintained the line fences in question while he was in possession. From whom Flenagin got the title does not appear. Weaver’s title deed was shown to be in the possession of the plaintiff at the time of the trial, but it was not put in evidence. Although a complete chain of the title from Leaver to the plaintiff was not shown upon the trial, the presumption is that his title came through Leaver, as did also that of the defendant’s.

Under the evidence, the burden, we think, was upon the plaintiff to show that his lot had in some way been released from the burden imposed upon it by the Leaver deed. This he failed to do. We agree with the county court that the covenant in the Leaver deed requiring the grantee, Luckey, to build and keep in repair the line fence in question, runs with the land. It was a covenant inserted in the deed for 'the benefit of the grantor, as owner of the adjoining land not conveyed, and which is now owned by the defendant. It released the defendant’s lot from the burden of thereafter building or maintaining a portion of the line fence between these lots. The distinction between covenants running with the land, and collateral covenants, which do not run with the land, is very clearly pointed out in the cases of Allen v. Culver, 13 Denio, 284, 297; Aikin v. Railroad Co., 26 Barb. 289, and Countryman v. Deck, 13 Abb. N. C. 110.

The appellant’s counsel contends that the defendant- was not entitled to avail herself of this defense, for the reason that, she had failed to plead it. The deed from Leaver, containing the covenant mentioned, was put in evidence by the defendant without the objection being made that the defense was not pleaded. It is too late to raise the question upon appeal. Had it been raised at the trial, the answer might have been amended, if deemed necessary. Whether, under the general denial, the defendant would not have been entitled to the evidence, we are not called upon to decide.

At the suggestion of the plaintiff, and by consent of the defendant, fence viewers were called upon to apportion the line fence between the lands in question. They designated the' part each should build, requiring the defendant to build that portion of the line fence for the building of which this action was brought. This fact is relied upon by the plaintiff as estopping the defendant from claiming the exemption mentioned. She case of Adams v. Van Alstyne, 25 N. Y. 236, would seem to have settled that question against the plaintiff’s contention.

The judgment and order appealed from should be affirmed.

All concur.  