then present, wanted to know if the contract which she had made with Graffam, or the proceeds of the sale of her land, could be applied on her son's contract. The evidence further, without conflict, shows that after the deceased and her son arrived in Idaho, and after he there visited the land which he had agreed to purchase from the Idaho Investment Company, he made the claim that the character of the land had been misrepresented and demanded a return of the $24 paid by him and reimbursement of his expenses, and refused to make further payments on his contract. No claim was then made by the Idaho Investment Company, or by any one else, that $575 had been credited on his note and contract because of the deed which his mother had made to Graffam, or that he had any credit excepting the sum of $24. The deed which Graffam made to the respondent was in September or October, 1905. The deceased made her deed to Graffam in June, 1903. During that time, a period of over two years, neither Graffam nor the Idaho Investment Company exercised any ownership over the property, nor did either attempt to do so, nor did either demand possession of it. During all that time the deceased, or her heirs, was in possession of the land occupying and exercising ownership over it.

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Upon all the evidence we are of the opinion that the deed which the deceased made was placed in escrow as contended for by the appellants, was not to be delivered until the purchase price agreed to be paid by Graffam was paid, and that it was delivered to him in violation of such agreement. We are further of the opinion that the respondent was not an innocent purchaser for value. She lived within a quarter of a mile of the deceased's property. At the time she claims to have purchased it she knew that neither Graffam nor the Idaho Investment Company ever had possession of the property or exercised any kind of ownership over it, and that the appellants, or some of them, were in the possession of the property and were and had been exercising acts of ownership over it. When she obtained her deed, she made no attempt to obtain possession until a con

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siderable time thereafter. The only consideration paid by her was the giving of a mortgage on the property.

The judgment of the court below is reversed, and the cause remanded to the trial court, with directions to vacate the judg ment heretofore entered and to make findings and enter a judgment in favor of the appellants quieting the title of the land in them as prayed for in their answer and counterclaim. Cost to appellants.

FRICK and MCCARTY, JJ., concur.

ALBERT SMITH, Appellant, v. JOHN DUNCAN and F. O. BUELL, Respondents.

No. 1968. Decided January 20, 1909 (99 Pac. 673). EASEMENTS-GRANTS-RIGHT OF WAY. An owner conveyed to a purchaser a parcel of land, together with the right of way extending from the northeast corner of the parcel "north to" a street for use of the grantee. Subsequently the owner conveyed to a third person the parcel adjacent to the purchaser's parcel, without reserving the right of way. When the first conveyance was made, there were buildings and other improvements which prevented a way due north, but which permitted a way in a northerly direction to the designated street. Held that, while the purchaser was entitled to a right of way to the designated street, he was not entitled to a way due north, and he could not cause a removal of permanent improvements standing in the way of such a direct course.

APPEAL from District Court, Fourth District. Hon. J. E. Booth, Judge.

Action by Albert Smith against John Duncan and another. From a judgment for defendants, plaintiff appeals.

REVERSED AND REMANDED.

A. C. Hatch for appellant.

D. D. Houtz and J. H. McDonald for respondents.

STRAUP, C. J.

This action arises over a controversy concerning a right of way to plaintiff's premises, a parcel of land 25 by 80 feet in block 102 in Heber city, Wasatch county. The block is divided into four lots. Lot No. 3 is the northwest, and lot No. 4 is the northeast, corner of the block. These lots are bounded on the north by a street called "Fourth Avenue," and on the west by a street called "Main Street." Plaintiff's land is described as running north twenty-five feet from a point three rods north of the southwest corner of lot 3; thence east eighty feet; thence south twenty-five feet; thence west eighty feet. The defendant Buell owns a parcel of land twenty-eight feet north and south by one hundred and five feet east and west, adjoining plaintiff's land on the north. Both of these parcels were owned by the defendant Duncan, who, at the time of the conveyance to plaintiff's grantors, also owned the land lying to the north to Fourth avenue. Duncan conveyed the parcel of land owned by plaintiff to Alfred Richens before he conveyed the parcel owned by Buell. In the deed from Duncan to Richens, after describing the parcel conveyed, is recited: "Also a right of way for wagons extending from the northeast corner of said tract of land herein described north to 4th avenue for the perpetual use of the grantee as an access to and from the premises with teams." Richens conveyed to Carrol, and Carrol to the plaintiff, each granting the same right of way described in the Duncan deed. Duncan conveyed to Buell the parcel of land adjoining plaintiff's land on the north, without reserving a right of way over the land conveyed to Buell. The plaintiff contended that he was entitled to a right of way from the northeast corner of his parcel of land due north to Fourth avenue over Buell's land, and other lands lying to the north of Buell's land. Buell denied plaintiff the right to at all pass over his land. Because of such denial the plaintiff has no access to the rear of his premises.

Duncan denied plaintiff's right to pass due north to Fourth avenue, but permitted him, after leaving Buell's land, to pass to Fourth avenue over lot 4 in a direction east of north. Hence this action. The court found that the plaintiff and his grantors abandoned the right of way granted in their deeds of conveyance. Judgment was therefore entered in favor of the defendants, from which the plaintiff has prosecuted this appeal.

We are of the opinion that the evidence does not support a finding of abandonment, and that the judgment cannot be supported on such a theory. Upon a consideration of all the evidence we are clearly of the opinion that the plaintiff is entitled to a right of way from the northeast corner of his land over Buell's land and Duncan's land to Fourth avenue. We are, however, of the opinion that the plaintiff is not entitled to such a right of way in a direction due north. There is much evidence tending to show, although on some matters conflicting, that when the conveyance was made by Duncan to plaintiff's grantor, granting a right of way "north to Fourth avenue," buildings and other permanent improvements were in the way of a course due north. From the physical condition of the premises made to appear at the time, we think it was fairly contemplated by the parties, by the language in the deed, "north to 4th avenue," not a course due north, but in a northerly direction to Fourth avenue. These structures and physical conditions exist now. At any rate, while we are of the opinion that the plaintiff is entitled to a right of way from his premises to Fourth avenue, still we do not think the equities of the case call for a judgment giving him a right of way due north, and thereby cause a removal of the permanent structures and improvements standing in the way of such a direct course.

The judgment of the court below is reversed, and the case remanded to the trial court with directions to vacate the judgment heretofore entered, and to make findings and enter a judgment in favor of the plaintiff, defining and giving him a right of way to and from his premises at the northeast cor

ner of Fourth avenue over the lands of Buell and Duncan in a direction as nearly north as may be practical and convenient without interfering with permanent structures and improvements; plaintiff to pay one half, and the defendants the other half, of the costs incurred in both courts. It is so ordered.

FRICK and MCCARTY, JJ., concur.

A. E. SNOW, Respondent, v. E. M. WEST, Appellant.

No. 1926. Decided January 19, 1909 (99 Pac. 674).

1. LIMITATION OF ACTIONS-WRONGFUL EXECUTION-ACTION FOR DAMAGES. An action against a judgment creditor for directing the levy and sale under an execution of exempt personal property is within Comp. Laws 1907, sec. 2877, providing that an action for ting personal property must be commenced within three years, and is not within section 2878, providing that an action against a sheriff or other officer on a liability incurred by the doing of an act in his official capa ity must be commenced within two years; the latter section applying only to officers, and not including a judgment creditor. (Page 208.)

2. FXEMPTIONS-PERSONS ENTITLED TO CLAIM EXEMPTIONS-STATUS-CONSTRUCTION. Comp. Laws 1907, sec. 3245, exempting from execution, except as otherwise specially provided, "chairs, ta' les, . . . to the value of $200, and the library belonging to the judgment debtor; also musical instruments in a tual use of the family; necessary household . . . furniture belonging to the judgment debtor, to the value of $300"-when considered in the light of the history of the legislation, showing that the provision exempting musical instruments is an added provision, and when considered in connection with section 3247, providing that none of the exemptions are for the benefit of nonresidents, etc., creates exemptions, with the exception of musical instruments, for the benefit of the judgment debtor, whether or not he is the head of a family. (Page 210.)

3. EXEMPTIONS-WRONGFUL EXECUTION-ACTIONS-ESTOPPEL. Under Comp. Laws, 1907, sec. 3248, providing that the officers executing the writ of execution must return to the judgment debtor any excess in the proceeds over the judgment and accruing costs, etc., and independent of the statute, a judgment debtor who accepts the surplus proceeds realized from the sale of his property