McDonald v. McElroy

Citations

• 60 Cal. 484
• 1882 Cal. LEXIS 497

Syllabus

<p>Eight of Way—Liability of Heir on Covenant of Ancestor—Warranty—Quiet Enjoyment—Seisin—Deed.—The facts alleged in the complaint were in substance as follows: M. by deed of date October 27, 1877, for a valuable consideration conveyed to plaintiff a lot of land in San Francisco “ particularly described as follows; Commencing on the southeasterly line of Minna street at a point distant one hundred and sixty feet eight inches northeasterly from the northeasterly line of Tenth street; thence running northeasterly along said line of Minna street twenty-two feet eight inches; thence at right angles southeasterly eighty feet; thence at right angles southwesterly twenty-two feet eight inches; and thence at right angles northwesterly eighty feet to said southeasterly line of Minna street at the point of commencement; together with the right of way in, upon and over a street thirty-five feet in width called Minna street, running from, Tenth street to the southwesterly line of the lot of land thereby conveyed {to wit, said last described parcel of land); said street forever to be and remain free and open as a public street.” At the date of the deed, M. was the owner of an undivided sixth part of a tract of land including the strip of land referred to as Minna street from Tenth street to within a short distance of the land conveyed, and was the owner in severalty of a tract of land which included the balance of the strip up to the land conveyed— said strip of land being in fact not a street but private property. After the death of M. by a decree in an action of partition to which the plaintiff was not a party, a portion of the land thus held in common, including a portion of the so called Minna street, was allotted to the defendants herein (who are the widow and children and heirs of M.) and the balance of the said land including the greater part of the so called Minna street was allotted to other parties; and thereby the ingress and egress of the plaintiff over the said Minn