Englander v. Apfelbaum , 56 Pa. Super. 145 ( 1914 )

Opinion by

Rice, P. J.,

The part of the finding of fact which was the subject of the defendants’ first exception and is quoted in the third assignment of error, should be read in connection with the preceding part of the finding which was not excepted to and is not assigned for error. It appears in that part of the finding and by the undisputed testimony, that for a period of nineteen years prior to the trial all of the properties Nos. 521, 523, 525, and 527 South Eighth street, including those of the plaintiffs and of the defendants (Nos. 525 and 527), had bulk or show windows on the first floor, extending westward from the face wall of the buildings and beyond the restricted line of five feet named in the restrictions in the deeds from Thomas B. Pritchard, for a distance of sixteen inches at the base and twenty-eight inches at the cornice of said bulk windows; also, that at the beginning of that period of nineteen years these bulk windows had the appearance of having been built many years before. It is true, as the learned counsel for the appellants says, there is no affirmative evidence that they were built by the original owner of the several lots, and the learned judge did not expressly find that they were. • Nor was that fact essential to the maintenance of the bill by the plaintiffs. These bulk or show windows having existed for a period of considerably more than twenty years, the natural presumption is, in the absence of anything tending to show the contrary, that they were erected and maintained with the consent of the several owners. Certainly, after that long period of acquiescence, none of them was in position, without showing more than was shown here, to prevent the other owners from using the portion of the restricted area occupied by the windows as it had been used. In that respect they stood on an equality. But the presumption of consent goes no further than we have stated. In other words, the facts do not raise a presumption that the building restriction contained in each of the several deeds from Pritchard to the plaintiffs’ and the defendants’ predecessors in title, was ever wholly abrogated by common consent of the owners of the lots for the benefit of which it was imposed. Therefore, the right of the plaintiffs to maintain a bill to restrain the defendants from a further and a different encroachment upon the restricted area, to the injury of the former, cannot be denied upon the ground that the building restriction had been put an end to by express or implied agreement of the parties having the right so to do. Is denial of the right to maintain the bill required by a proper and just application of the maxim, that he who comes into equity must do so with clean hands? This maxim has also been expressed, “he that hath committed iniquity shall not have equity.” The maxim only applies to the particular transaction under consideration, for the court will not go outside of the case for the purpose of examining the conduct of the complainant in other matters: Bispham’s Eq., 7th ed., sec. 42. It must be understood to apply to willful misconduct in regard to the matter in litigation: Lewis & Nelson’s App., 67 Pa. 153. The maxim means that equity refuses to lend its aid in any manner to one seeking its active interposition who has been guilty of unlawful or inequitable conduct in the matter in relation to which he seeks relief: 16 Cyc. of Law & Pro. 144. Here, the matter alleged as ground for refusing the plaintiffs relief in equity to any extent, is the fact that their bulk or show window encroaches upon the restricted area to the same extent and in the same manner as did that of the defendants. It would be plainly inequitable to restrain either party, at the instance of the other, from maintaining them. But, in view of the natural presumption that they were maintained by common consent, it would be a perversion of language to say that the plaintiffs’ action in maintaining their window within the restricted area was such willful, unlawful, or inequitable conduct as bars them from invoking the jurisdiction of equity, to restrain the defendants from a further and different encroachment, to their injury. Certainly, none of the authorities that have been cited go to that extent; on the contrary, the case of Landell y, Hamilton, 177 Pa. 23, tends to support the conclusion that a bill could be maintained for such further encroachment. This is the extent to which the decree goes, and to that extent we think it is fully warranted by the evidence and the legal and equitable principles applicable to the facts deducible therefrom.

The case is so well stated in the clear and concise findings of fact and conclusions of law filed by the learned trial judge that we do not deem it necessary to add anything further thereto.

The assignments of error are overruled and the decree is affirmed at the costs of the appellants.