gage to Mrs. Jeffrey is then alleged, and the allegation is followed by others in respect to the tender and the refusal by Mrs. Jeffrey to receive the money. The formal defect here is that the bill does not expressly show that Squier derived title to the land through or under Griffith, which would be essential to make out privity.

The answer professes ignorance of complainant's mortgage, and does not admit its validity. It admits, however, that if it has any validity it "was and is a subsequent encumbrance and lien on said land therein mentioned and described" to the mortgage held by Mrs. Jeffrey. This admission apparently was supposed to render unnecessary any proofs in respect to the title, and none were gone into. Under these circumstances we are inclined to treat the allegation in the bill as sufficient. To say that one mortgage is a subsequent encumbrance on the land described to another is in effect to say that it is a mortgage of the equity of redemption; and if the defendant wanted more specific allegations she should have demurred. We are not disposed to favor objections of this sort when taken in any other manner than by demurrer And we are especially indisposed to do so in this case because it incidentally appears that Mrs. Jeffrey had recognized the right of the second mortgagee to make payments upon the one held by her; and this could only come from an interest in the equity of redemption. A stranger to the title has no right to pay off a mortgage.

The substantial questions, then, are whether complainant made a tender as he claims, and if so, whether Mrs. Jeffrey refused to receive it. Upon this point the testimony is hopelessly in conflict. We are forced to the conclusion, however, that complainant did make a tender as he claims he did, and that Mrs. Jeffrey, if she did not directly refuse to comply, managed to avoid it for the purpose of obtaining the land on a foreclosure which should cut off the mortgage of complainant. The complainant is therefore entitled to the relief he prays.

The only question that remains concerns the costs. In general the party coming to redeem must do so at his own

expense, unless he has tendered redemption and put the owner of the mortgage in default. We have already said that we think that was the case here. It is said on behalf of defendant that the bill does not show that the tender has been kept good; and in strictness this is true, though the bill does say complainant has always been ready and willing to pay defendant the amount of her mortgage if she would receive it. That she would not receive it at any time since suit was brought sufficiently appears from her answer.

The most favorable decree we can make for the defendant is to give her the amount of her mortgage with interest, but to require her to pay the costs of taking the appeal and the costs in this court. In the court below each party will be left to pay his or her own costs. A final order will be entered accordingly.

The other Justices concurred.

JOHN WEINMIESTER V. HARLEY INGERSOLL.

Common use of premises by owners in severalty.

W. and I. owned a building in severalty, W. having the north half and I. the south. The building had a common entrance and stairway to the second floor, but above the first story a partition wall divided it. W. having leased his portion to I. for a term of years cut doors, for the lessee's convenience, through the partition and ran a stairway from the second to the third floor on his own premises. The only hall-way on the second floor was on I.'s side. When the lease expired I. plastered up the doors in the partition wall and refused to allow W. to use the hall-way on his side. There was no satisfactory showing that the arrangements made for the lessee's convenience were intended to survive the lease or that I. had estopped himself from objecting to W.'s use of his part of the premises thereafter. Held, that W. could not claim any easement in I.'s premises after the termination of the lease, and could not maintain an injunction bill to restrain I. from obstructing his use of the hall-way.

Appeal from Ingham. Submitted June 30. Decided October 12.

INJUNCTION to restrain obstruction of passage-way in dwelling. Defendant appeals. Reversed; bill dismissed.

J. C. Shields for complainant.

S. L. Kilbourne for defendant.

GRAVES, J. The complainant owns the north half and the defendant the south half of a building adjoining the Hudson House on the north in the city of Lansing. It was put up in 1854, the north half by William Hinman and the other by the defendant, and was constructed with a flight of stairs from a front entrance on the ground floor, to a hall on the second floor running back to a second flight of stairs which communicated with the third story; the entrance, hall and stairways, being equally on the land of Hinman and of defendant and used by them and their tenants, in common.

In 1871 the complainant became the owner of the Hinman portion of the premises. The building had not proved to be profitable and moreover was found to be weak and the parties were apprehensive that it might fall. They accordingly resolved to make such changes and additions as were deemed necessary and expedient to give it due strength and increase its usefulness. With this view they employed Mr. Gillett, an architect, in the spring of 1872 to devise the requisite improvements and supervise the work, and he immediately prepared such plans as he considered best and the parties adopted them.

It is not essential to refer to all the particulars. This scheme left the passage-way from the front to the second floor practically unchanged. But the rest of the arrangement was substantially subverted and the new plans contemplated distinct hall-ways and stairs for each proprietor, the two systems to be separated by a brick wall, and each to be entered through a door from the landing on the second floor at the head of the front stairs. According to this design as will be noticed, the enjoyment of each proprietor, after passing the landing on the second floor, was to be confined to his own side of the line. Messrs. Wright & Axtell,

two mechanics, were set to do the work, and when it had reached the second floor the defendant proposed a series of changes and the complainant assented. The occasion of this deviation from the plans of the architect, was that the defendant since the commencement of the work had leased complainant's second and third stories for five years, to be used in conjunction with his own premises for a boardinghouse, and it was desirable to have the changes and improvements so modified that the portions hired by defendant could be conveniently used with his own premises for the purpose intended; it being evident that if the plans as drawn were carried out no such use would be practicable.

The complainant says in his testimony, "that after Mr. Ingersoll rented, the original plan was changed as to the arrangement of the second floor according to Mr. Ingersoll's wishes;" and the fact is distinct that the object intended to be accomplished and which was accomplished by the departure from the plan which was first agreed on, was the accommodation of the portion owned by complainant to that owned by defendant, in such manner that the whole of defendant's premises and the second and third stories of complainant's might be satisfactorily used by defendant as one boarding-house establishment. The particular alterations to which there is any occasion to advert were as follows: Whilst retaining the hall as laid out on the defendant's side of the division wall, the hall on complainant's side, together with stairs laid out to run therefrom along the same line to the third story, were abandoned. As the whole second and third stories of complainant's property were going to be used by defendant with his property as one concern, the hall on his side was deemed sufficient; while the throwing out of the other, together with the stairs, would result in giving greater size to the apartments on that side, and in leaving room at a convenient point for a passageway through the division wall for communication between the apartments owned and those leased. Two doors were cut through for the purpose of such communication and a flight of stairs was run from the hall referred to on defend

47 Mica.-3.

ant's premises, north, and on the premises of complainant to the third story.

As soon as the agreed improvements were completed the defendant entered under his lease and held thereunder for the full term of five years, and thereafter on the same terms for two years more, making seven years in all. The complainant then demanded a slight increase of rent which the defendant refused to give and the relation between them of landlord and tenant ceased. The defendant notified complainant that he had no right to use the hall and that the openings communicating with complainant's premises would be closed. The complainant however contended that the right to use the hall substantially as it was, in common with the occupants of defendant's premises, had become appurtenant to his premises, and that the same principle in defendant's favor applied to the stairs running from the hall north on complainant's premises to the third floor. In this state of things the complainant leased to a third person and the defendant plastered up the openings from the hall on the north side and the complainant caused the obstructions to be removed. Soon afterwards the same thing was partially repeated and the defendant sued in trespass.

The complainant then brought this bill for a perpetual injunction against any obstruction to the use by the occupants of his premises in common with the occupants of the others of the hall in question, and the court granted the relief prayed and defendant appealed. If the bill intended to set up a case of interference with complainant's use of the front stairs and landing in connection with the passage-way on his own side and by means of which he has access to his premises, it has not done it. The pleadings raise no issue of any disturbance of that kind. The complainant has had the undisturbed use of the front passage in going to and from the door near the head of it on his side of the line. The space in contention is the hall on defendant's premises and the passage-ways on that side communicating with complainant's apartments. This is admitted. The essence of complainant's case is that under the doctrine of