
    McCown v. Bunting et al.
    
      Landlord and tenant — Stairway over lessor’s property for benefit of property ovmed with lessee — Assignment without consent of subsequent owner of servient property— Waiver and estoppel from objecting to assignment — Consent to sale of lease in partition.
    
    1. Lease, granting use of stairway over property owned by lessor alone for benefit of property owned jointly with lessee, requiring written consent of lessor to assignment of lease, held intended to be assignable with, and an appurtenance to, the property jointly owned, without consent of subsequent owner of servient property.
    2. Owner of land subject to easement for stairway, consenting to sale of lease granting easement as an appurtenance to dominant tenement, waived provisions of lease requiring consent to assignment, and is estopped from objecting to sale of lease as an appurtenance to dominant tenement, and purchaser of servient tenement cannot object to sale of lease without his consent.
    (Decided December 3, 1925.)
    Appeal: Court of Appeals for Columbiana county.
    
      Mr. Charles Boyd, for plaintiff.
    
      Mr. W. A. O’Grady, for defendants.
   Washburn, J.

A. owned a part of a city lot, designated herein as parcel No. 1. A. and X. owned in common the balance of said lot, designated herein as parcel No. 2. A. and X. constructed on parcel No. 2 a brick building, the stairway of which extended onto parcel No. 1, and a part of parcel No. 1 was used as an areaway for ingress and egress to the building. Such use in connection with said building of a part of parcel No. 1 was effected by virtue of a lease duly executed and recorded, made by A. as lessor to X. as lessee, which lease contained the provision that:

“Said lessee shall not assign this lease * * * nor permit her interest under this lease to be sold under legal process, without the written consent of said lessor, * * * and that, if said lessee, shall, without such consent, do or suffer any of the things forbidden to her herein, * * * then said lessor may recover possession of said premises and terminate this lease, without reference to the time his lease would otherwise have expired. ’ ’

This provision was contained in the printed portion of the lease, which also contained the following inserted in writing: “This lease to apply to lessor and lessee and their legal successors.” It also contained the provision that the premises “shall be used jointly by lessor and lessee and their tenants in common.” The term of the lease was 30 years. After said premises had been so occupied under said lease for a large part of said term, A. died, and by his will the ownership of parcel No. 1 passed to D., his wife, the will containing the express provision that the property was given subject to said lease, and by his death, D., his wife, also acquired an interest in parcel No. 2. Thereafter X. brought suit to partition parcel No. 2, describing said lease as an appurtenance to said parcel No. 2, and D. filed an answer, in which she prayed that the property described in the petition be partitioned, and that, if the same could not be done without manifest injury to the property, the property be sold. These proceedings resulted in the sale by the sheriff of parcel No. 2, including the lease as an appurtenance thereto, and the same was purchased by X. On distribution D. received a portion of the proceeds of the sale of said lease as an appurtenance to said Parcel No. 2, and thereafter D. sold parcel No. 1 to plaintiff. Practically at the same time X. sold parcel No. 2, including said lease as an appurtenance thereto, to defendants, and thereafter plaintiffs brought this action to declare said lease null and void, and to require defendants to remove the stairways and cellarways from said parcel No. 1. Held:

That, talcing into consideration the situation of the parties, and all the circumstances and all of the provisions of said lease, the same was, and was intended to be, assignable with and as an appurtenance to parcel No. 2, without the consent of the owner of parcel No. 1-.

That, in any event D., the owner of parcel No. 1, having consented to the sale at public auction of said lease as an appurtenance to parcel No. 2, without reservation as to future sale, in legal effect waived the provision of said lease against assignment, and consented that the same be sold in the future with and as an appurtenance to parcel No. 2, and was therefore estopped from thereafter objecting to such sale, and plaintiff as purchaser of parcel No. 1 from D., took the same subject to said appurtenance, and did not acquire from D. the right to object to a future sale of said lease as a part of parcel No. 2, and are not entitled to a forfeiture of said lease on the ground that the defendants purchased the same without their consent.

The common pleas court reached a proper conelusion in this case, and a like decree may be entered in this court.

Decree accordingly.

Pardee, P. J., and Punk, J., concur.

Judges of the Ninth Appellate District sitting in place of Judges Pollock, Roberts and Parr, of the Seventh Appellate District.  