In 1990, Grantor acquired title to Greenacre, 15 acres of land on the northerly side of Highway.In 1995, Grantor conveyed Backland, the rear ten acres of Greenacre, to Dom. Backland does not include any frontage on Highway and is landlocked. The deed from Grantor to Dom contained no grant of an easement over Roadland, the remaining portion of Greenacre. During 1996, Dom cut some trees on Backland for firewood, accessing Backland by using a road located on Roadland along its westerly boundary line. Since then, Dom has not been to Backland.
In 2002, Grantor conveyed Roadland to Husband and Wife, as tenants by the entirety. The deed did not except or reserve any easement in favor of Backland. In 2003, Wife executed and delivered to Husband a durable power of attorney which expressly included authority for real estate transactions.
Nine months ago, Wife learned that Husband was having an extramarital affair, and she immediately moved out of the marital home. Wife has refused to return despite Husband’s repeated requests that she do so and his assurances that the affair was brief and had terminated.
Six months ago, Husband conveyed Roadland to Serv by a deed which he executed individually and on behalf of Wife, using the power of attorney. Husband did not inform Wife of the conveyance and has retained the proceeds of the sale. When Dom recently attempted to use the road over Roadland to again cut firewood on Backland, Serv stopped him and told him that he could not use the road. Wife has commenced an action against Serv seeking a declaration that she
owns an undivided one-half interest in Roadland.
(1) (a) Does Husband now have grounds for a divorce from Wife, and
(b) Assuming he does, would his adultery provide Wife with a
defense?
(2) Is Roadland subject to an easement in favor of Backland?
(3) Should Wife prevail in her action against Serv?
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