Hochstein

Appeal from an interlocutory decree in partition. The property involved herein originally belonged to John Berghauser, who, by an instrument bearing date October 31, 1873, conveyed to his wife, Margarethe, an undivided third part thereof, with the exception of one parcel, to be hereinafter mentioned. At that date an action for divorce was pending between the parties, and an agreement was entered into between them providing that in case the court should render a judgment of divorce Berghauser should convey to his wife certain described property, .including an undivided third of a portion of that involved herein. A judgment of divorce between them was rendered by the court, but no disposition or mention of property was made in the judgment, nor did the above deed of conveyance executed to Margarethe purport to be made in pursuance of the agreement or of the decree.

One parcel of the property, known as the “Prescott House,” was within the district affected by the opening of Montgomery avenue, then in process of accomplishment, and it was provided by the agreement that Margarethe should be entitled to an undivided third of all moneys or bonds which might be received for damages…