McCown v. Bunting
This text of 155 N.E. 159 (McCown v. Bunting) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
A owned parcel No. 1 lot; A and X owned parcel No. 2 lot in common. A and X constructed on said parcel No. 2 a dwelling, the stairway of which extended onto Parcel No. 1, a part of said Parcel No. 1 being used as ingress and egress to said building.
A as lessor executed to X a 30 year lease on part of Parcel No. 1, permitting such use, there being a covenant in said lease forbidding assignment thereof. A died, devising Parcel No. 1 to D, his wife, subject to the conditions of said lease. D. by A’s death, also acquired the interest in parcel No. 2.
X brought proceedings to partition parcel No. 2, describing said lease as an appurtenance thereto. D. filed answer, also praying for partition, or-if that could not be done without manifest injury to the property, that same be sold.
Said Parcel No. 2 was sold by the sheriff to X. D. then sold Parcel No. 1 to George MeCown, at the same time X sold Parcel No. 2 to Mary Bunting, with said lease as an appurtenance thereto.
MeCown filed this action to have said lease declared null and void and to compel Bunting to remove a stairway from Parcel No. 1. The Columbiana Common Pleas refused such action. On appeal the Court of Appeals held:
1. Taking into consideration the situation of the parties and all the circumstances and all 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.
2. In view of the fact that the owner of Parcel No. 1 permitted sale of Parcel No. 2 with said lease as appurtenance thereto, without reservation as to future sale, she in effect waived the provision against assignment, and was estopped thereafter from objecting to such a sale.
3. Purchaser of Parcel No. 1 took same thereafter subject to said appurtenance and could not assert the right of A to object to a future sale of said lease as part of Parcel No. 2.
Decree accordingly.
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Cite This Page — Counsel Stack
155 N.E. 159, 23 Ohio App. 340, 4 Ohio Law. Abs. 141, 1925 Ohio App. LEXIS 145, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccown-v-bunting-ohioctapp-1925.