Majority
p. 90Horton H. Burlock, Administrator, &c., of Eliza A. F. Burlock, dec’d, v. John Peck and George Gordon, Executors, &c., of Elisha Peck, dec’d.
Headnote
A., owning two lots of ground adjoining each other, sold and conveyed one of them, and by a clause in the deed provided that the grantee might erect a party wall on the line dividing the two lots, one half on each lot, and covenanted to pay for the wall when used; and A.’s grantee erected such a party ' wall, and then conveyed the lot and building so erected to B. Sold, that B., on such party wall being used by A.’s subsequent grantee of the adjoining lot, might recover of A., and he being dead, of his executors, one half of the value of the party wall. Held, also, that B., having died intestate, after the party wall had been used and appropriated by the grantee of the adjoining lot, the action was properly brought by her administrator.That the party wall, when used, was the property of B., and she was "equitably entitled to receive the money to> be paid for using it. That by using and
p. 91(Before Duer., Bosworth, and Emmet, J.J.) December 22, 1852; March 26, 1853.
appropriating it, the title to so much of it as stood, on the adjoining lot was vested in the grantee thereof, and did not, on the subsequent death of B,, descend to her heir at law. The right to compensation, was a right in action, enforceable at the suit of the administrator of B.
Elisha. Peck, in his lifetime, owned in fee several lots of ground on the northerly side of Third street, between the First and Second avenues, each 20 feet wide, being Nos. 65 to 75 inclusive, No. 75 being the most easterly of the number.
On the 8th of April, 1839, Peck and wife sold and conveyed by deed to John Hanrahan, lots 65, 67, and 69. The deed, besides the usual full covenants of warranty, contained this clause, viz. “ And the party of the second part has the privilege of building a party wall twelve (12) inchés thick, extending six inches on each side of the easterly line, forty-two feet deep, which wall the said party of the first part agrees to pay for, when used, and that each party has the privilege of extending said party wall ten feet further on the same conditions.”
In August, 1839, Hanrahan erected a dwelling house on lot 69, the most easterly of his three lots, and constructed the easterly wall twelve inches thick, six inches of it being on lot 69, and the other six inches on lot 71, which latter lot was yet owned by Peck. The wall was of the value of $400.
On the 20th of March, 1840, Hanrahan and wife sold and by deed conveyed lot 69, to the plaintiff’s intestate. The deed described the lot by metes and bounds, and conveyed the same “ together with all and singular the tenements, hereditaments and appurtenances thereunto belonging, or in any wise appertaining, and also all the estate, right, title, interest, dower and right of dower, property, possession, claim and demand whatsoever, as well in law as in equity of Hanrahan and wife of, in, and to the same and every part and parcel thereof, with the appurtenances, unto the sole and separate use of the plaintiff’s intestate, her heirs and assigns for ever.” .
In April, 1846, Peck sold, and by deed conveyed the lots 71, 73, and 75 to Hanrahan, together with all the tenements, hereditaments, and appurtenances thereunto belonging.
After this purchase, and in April, 1846, Hanrahan erected
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buildings on the'three lots last named; and in the erection of the building on 71 used, and made a part thereof, the party wall of the intestate’s building on the easterly side of lot 69.
The plaintiff’s intestate died in October, 1847, leaving her surviving Thos. IT. Burlock, a son, issue of her marriage with the plaintiff, Horton H. Burlock.' The plaintiff was appointed her administrator in Hay, 1852. Hr. Peck died in Nov. 1851, and the defendants are his executors, and have qualified as such.
Neither Hr. Peck in‘his lifetime nor his executors, since his death, have paid anything for the party wall so used, either to1 the intestate or to the plaintiff. To a complaint stating these facts, the defendants demurred. Judgment was given for the defendants on the demurrer at Special Term, on the ground that the agreement of Peck to pay for the party wall, did not enure to the plaintiff’s intestate, under the deed given to her, and that on the wall being so used, she as grantee had no right to recover the half of its value. From this judgment the plaintiff appeals.
H. H. Burlock, the appellant in person,
made and argued the following points in support of the appeal:
I. The covenant respecting the party wall was a real covenant, running with the land—because, 1. There was a privity of estate between the covenantor and his grantee. £. The .covenant related to and was made for the benefit of the land. 3. It was the intention of the parties to the deed containing the covenant' to make it a covenant running with the land. (Spencer's Case, 3 Coke, 66. Law Library, 27 vol., N. S. page 75 and notes. Allen v. Culver, 3 Denio, 297 and 298. Norman v. Wells, 17 Wendell, 136. Vivian v. Arthur, 1 B. and C. 410. S. C., L. R. 113. Vernon v. Smith, 5 B. and Ald. 1, (7) C. L. R. 8. Holmes v. Buckley, 1 Equity Cases Abridged, 27. Brewster v. Kitchin, 12 Mod. 166. 27 Law Library, 84 and 85, 92 and 93. Morse v. Aldrich, 19 Pick. 449 . Beddoe's Ex'rs v. Wadsworth, 21 Wendell, 120. Weyman's Ex'rs v. Ringold, 1 Bradford, 53 .)
H. The covenant amounted to a grant of an easement which was rendered appurtenant to the lands of the covenantor and Ms grantee. Such clearly was the intention of the parties to
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the deed—because, 1. The land upon which the party wall was to be erected was granted and set apart by the covenantor and his grantee as and for a party wall between the property. 2. One half of the wall was to be erected on each lot, and the wall thus to be erected remained the sole property of Hanrahan, or his assigns, until Peck or his assigns used the wall and paid therefor a certain sum, to be ascertained. The wall then became the joint property of the owners of the contiguous lots. (See Mott v. Hawkins, 5 Taunton, 20. Sherred v. Cisco, 4 Sandford’s Law Reports, 481.) 3. The conveyance of either lot carried with it, as an incident, the wall or the rights which the party had in and to the wall under the covenant. The burdens and benefits of the covenant were cast upon the respective owners of the lots. 4. If Hanrahan had conveyed to the intestate before building the wall, she would have had a right to build the wall under the covenant, and upon Peck’s afterwards using the wall built by her he would be liable to pay one half of the expense of such wall. 5. If Peck or his grantee had or at any time should extend the wall ten feet further, the intestate, or her heir—devisee or grantee, would, on using such extended wall, be bound to pay one half of the expense thereof. 6. The covenant is in substance and effect, that Peck, whenever the wall shall be used either by him or his assigns, will pay therefor, to the owner of the contiguous lot, at the time of such use. Y. When Hanrahan used the wall, he not only used the part that was upon his own lot, but the part that was on the lot of the intestate. (See Laws of 1830, pages 349 and 350, § 2, § 4. Laws of 1831, page 392, § 1.) 8. Ho person is named in the covenant, as the party to whom the payment for the wall is to be made, and in such a case it is a "well settled principle that the stipulation will be enforced in equity, in favor of the party for whose benefit it is intended, or who is the party legally or equitably entitled, though he be a stranger to the undertaking. 9. The intestate is the person for whose benefit the covenant was made, she being the owner of the lot 69 Third Street, and the easement attached thereto, in lot Y1 Third Street, at the time of the use of the wall. (Allen v. Culver, 3 Denio, 297 and 298. Norman v. Wells, 17 Wendell, 136. Hills v. Miller, 3 Paige,
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256. Trustees of Watertown v. Cowen, 4 Paige, 510. City of Cincinnati v. Lessees of White, 6 Peters’ R. 431. 3 Kent’s Com. 433. Worth Ipswich Factory v. Batchelder, 5 N. H. R. 192 . Balley v. Wells, 3 Wilson, 26. Bucheridge v. In gram, 2 Vesey Jr. 317. Brewster v. Kitchin, 1 Lord Raymond, 317. Holmes v. Buckley, 1 Abridged Equity, 27. Earl of Portsmouth v. Bunn, 1 Barn. and Cress. 694. Cruise’s Digest, title Deed, 32, Chapter 6, § 39, § 40. First American Edition. Holmes v. Sellers, 3 Lev. 305. 1 Inst. 147. Willard v. Tillman, 2 Hill, 276 . Demarest v. Willard, 8 Cowen, 206. Beddoe's Ex'rs v. Wadsworth, 21 Wendell, 124. Sampson v. Easterby, 9 B. and C. 505. Cubit v. Porter, 8. B. and C. 254, 257. Wiltshire v. Sidford, 1 Mann and Ryl. 404. Mor gan v. Mason, 20 Ohio R. 401. Gray v. Cuthberton, 2 Chitty’s R. 482. Lametti v. Anderson, 6 Cowen, 302. Thompson v. Rose, 8 Cowen, 266. Campbell v. Mosin, 4 I. C. R. 344, 6 do. 21. Vivian v. Arthur, 1 B. and C. 410. Gale and Wheatley on Easements, 200 and 201. Savage v. Mason, 3 Cushing, 500. Brown v. Pentz, M. S. Superior Court, February, 1850, Affirmed by the Court of Appeals, April, 1851. Weyman's Ex'rs v. Ringold, 1 Bradford, 53 . 1 R. S. 748, § 2.)
HI. The conveyance of lot 71 Third street, by Peck to Hanrahan, did not discharge Peck from liability on his covenant, to pay for the party wall whenever it was used either by him or his grantee. It is like the case of a lessee and his assignee ; both are liable, one on his express covenant, and the other by reason of his privity of estate. (Taylor’s Landlord and Tenant, pp. 212 and 213.) The assignee may discharge himself from liability, by transferring his interest in the lease, but not the lessee; he always remains liable. (Ibid.)
IV. The plaintiff is entitled to recover from the defendants, the-value of one half of the party wall built by Hanrahan, and on the lots 69 and 71 Third street, at the time of the conveyance by Hanrahan and wife, to the intestate—because, 1. The covenant itself cast the burden of paying for the wall, when used by Peck or his assigns. 2. The intestate was the owner of the lot and wall at the time the wall was used by Hanrahan, and neither Peck nor his assignee who used the wall, had then any interest in the lot or wall, and payment was not to be
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made until the wall was used. 3. ‘The intestate was, in fact and in law, the assignee of Hanrahan of the lot to be conveyed, and the entire wall. By the deed to her, all the right, title, interest, and claim of Hanrahan to the lot, house, and wall, passed. An easement appurtenant to the land passes with the land, though the deed neither mentions the easement, nor privileges and appurtenances generally, unless it be expressly reserved in the deed, or by another made at the same time. (2 Hillard’s Abridgment, 119 and 349; 3 Kent’s Com. 433; Pattison v. Hull, 7 Cowen, 747.) 4. The privilege to use the land of the testator, for the building of the party wall, given in the deed to Hanrahan, operated as a grant of the use of six inches of the land of the testator for that purpose, and that privilege beyond all doubt was one running with the land, and passed to the intestate by the deed to her. 5. That part of the covenant being one running with the land, the whole of it is, as the covenant cannot be broken into fragments, and part be a real covenant, and part a personal one. 6. When Hanrahan conveyed to the intestate it was an unbroken covenant respecting the land, and something to be done concerning it, to wit, the using of the wall and paying for one half of it at the time of using, and the covenant not only related to so much of the wall as was built on the lot of either owner, but each had an interest in the entire wall and the land it covered. (Weyman's Ex'rs v. Ringold, 1 Bradford, 60 , 61; Matts v. Hawkins, 5 Taunton, 20; Campbell v. Mezier, 4 John. C. R. 337, 6 do. 21.) 7. That assigns are not named in the covenant makes no difference; the deed to the intestate passed to her all the equitable interest that Hanrahan had under the covenant, whether the covenant runs with the land or not, and gave her a right of action in her own name since the Code. (Code of 1851, § 111; Thompson v. Rose, 8 Cowen, 266; 4 Kent, 159; White v. Whitney, 3 Metcalf, 81; Platt on Covenants, 481; 3 Law Library, 315; Smith’s Leading Cases, 89.) 8. Although assigns are not named in the covenant, they are necessarily implied; the land is granted to Hanrahan, his heirs and assigns for ever, and by reference to the grant of the land the assigns of the grantee are clearly named. 9. The grant of the land being to Hanrahan, his heirs and assigns, the deed may read thus, the parties of"
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the first part grant and convey to the party of the second part, his heirs, and assigns, for ever, all that certain piece of land, &c., with the privilege, &c.” ■
Y. The judgment in favor of the defendant is clearly erroneous, and should be reversed with costs, and judgment rendered for the plaintiff for the amount claimed.
H. Holden, Counsel for respondents,
made and argued the following points.
I. The complaint does not state facts sufficient to constitute a cause of action.
H. There is no covenant on the part of Peck, the testator, running with the land, by which Mrs. Burlock acquired any right "whatever. The covenant related to a thing not in esse, but to be done upon the land, and Hanrahan’s assigns- are not named. (Tullman v. Coffin, 4 Comstock, 134; Thompson v. Rose, 8 Cowen, 266; Allen & Paxson v. Culver, 3 Denio, 284 -296; Weyman’s Ex'rs v. Ringold, 1 Bradford, 40 .)
IH. The deed to Mrs. Burlock describes the land only, by metes and bounds, no reference is made to a party wall, nor is' a dwelling-house named. Mrs. Burlock took, and her heir holds, all that she purchased or intended to purchase. Whatever rights. Hanrahan had, and which he did not convey expressly, he reserved.
IY. In pursuance of the agreement between Peck and Hanrahan, which was personal in its character, Peck actually paid Hanrahan for the party wall by conveying the adjoining lot to Hanrahan, which Hanrahan immediately improved—allowance was then made to Hanrahan for the party wall, and if the plaintiff now succeeds, the effect will be to compel Peck and his representatives to pay for the whole wall instead of half.
Y. Each owner owns, in severalty, the portion of the wall situated on his own land—with no qualification except that neither has a right to pull it down without the other’s consent. (Sherred v. Cisco, 4 Sandford, 480.)
YT. If the agreement set out in the complaint is a covenant running with the land, then Hanrahan (Peck’s grantee) should pay for it; Peck never used the wall. The same Hanrahan,
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who was the grantee of Burloek, purchased of Peck the adjoining lot, No. 71, and was the first to use the wall by building on No. 71.
The conveyance by Hanrahan to Mrs. Burloek of lot 69, in March, 1840, transferred to her the title to the whole of the party-wall standing on the easterly line of the lot. Six inches of its width had been lawfully erected on lot 71. The right and privilege to so erect it, were given by the deed of 1839 from Peck to Hanrahan. Until Peck or his grantee of lot 71, built on the latter lot, and used the party-wall, the wall was the sole property of Mrs. Burloek, from the time lot 69 was conveyed to her.
Nothing had been paid for'the party-wall up to the time she became the owner of lot 69. The party-wall was not used by any owner of lot 71, until over seven years after she became the absolute and exclusive owner of lot 69, and of the building erected thereon with its appurtenances, and of every claim and demand of her grantors of, in, and to the same.
When Hanrahan built on lot 71, and used the party-wall of the building, belonging to plaintiff’s intestate, he appropriated to his own use her property. It was lawful for him to so appropriate it. But when it was so used she had a right to be paid one half of its value. If Peck wag liable under his covenant to pay half of its value, she was entitled to the payment, for the reason that the property which had been taken and used was hers. (Brown v. Pentz (decided by the Court of Appeals), N. Y. Legal Observer, vol. i., p. 24; United States v. Appleton, 1 Sum. R. 492.)
Mrs. Burloek bought and paid for a lot with a dwelling-house on it, having half of one of its walls rightfully on an adjoining lot belonging to Peck, which party-wall he or his grantees had a right to use, but with respect to which he covenanted to pay half of its value when used. When it was used Mrs. Burloek owned it, and she was equitably entitled to the money. The sale and conveyance of property subject to a certain use on payment of a stipulated consideration, carries with it the right to receive such consideration, when the stipulated use shall be made of the property.
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We have not overlooked the numerous decisions of the Supreme Court of Pennsylvania, which hold that the claim to compensation for the use of a party-wall is personal to the first builder, is a mere chose in action, is not a lien on the land, will not pass to a grantee of the building of which it is a part by a conveyance of the lot and building with its appurtenances, and is only a personal charge against the builder of the second house. (White v. Snyder, 2 Miles, 395; Oat v. Middleton, id. 248; Hart v. Kucher, 5 S. & R., 1 Dallas, 341. Ingles v. Bringhurst, 10 Barr. 219; Gilbert v. Drew, 10 id. 155. Todd v. Stokes.)
These cases either arqse under the statute of that State of the 24th of February, 1721, or were decided on the authority of cases thus arising. That statute provides that, “ the first builder shall be reimbursed for one moiety of the charge of the party-wall, or for so much as the next builder shall use before he breaks into the wall.” (Davids v. Harris, 9 Barr. 503.)
We are unable to perceive any substantial difference between this case, and Brown v. Pentz, and on the authority of the latter the plaintiff is entitled to revover, unless the objection is well taken, that the action should have been brought by the heirs instead of the administrator of Hrs. Burlock.
When this party-wall was used, her right of action to recover half of its value became perfect and absolute. This was in her life-time. The title to the half of the wall standing on 71, on, and after the time it was used by the owner of lot 71, was vested absolutely in him; and the owner of each lot, besides owning in fee the part standing on his lot, has, and from that time had, an easement in the other part for the support of his own house. The title to nothing for which Peck was to' pay, descended to the heirs of Hrs. Burlock. It would seem to be as clear that the administrator should recover for the half of the wall, as for the unpaid consideration money of land sold and conveyed by an intestate in his life-time. (Hamilton v. Wilson, 4 J. R. 72.)
We think the judgment appealed from should be reversed, and judgment entered for the plaintiff, but with liberty to the defendant to withdraw the demurrer, and'answer in 20 days on payment of the plaintiff’s costs upon the demurrer and of this appeal.