Holden v. Gibson

Bailey, J. The only question in this case is, whether, under the party wall agreement between Holden and Armstrong, the right to compensation for one half of the cost of the party wall was personal to'Holden, or passed by his grant of lot twelve to the appellee. There can be no doubt that the covenant to pay for one half of the wall before using it, was a covenant running with Armstrong’s lot, lot eleven, so as to become obligatory upon Kedzie, his grantee. This" is settled by the case of Roche v. Ullman, 104 Ill. 11, where this precise question was decided, and the rule there laid down is not questioned here, Kedzie having admitted his liability, and paid into court the sum of money found to be due from him under the covenant. But to sustain the decree, it must be held that the benefit secured to Holden by the covenant run with lot twelve, for otherwise there is no priority, either of contract or estate, between the appellee and Armstrong, or his grantee, Kedzie. In form, at least, the covenant would seem to be personal to Holden. It provides that, “ whenever said Armstrong use-; all or any part of said party wall, he shall first pay to said Holden the cost of one half of the part of said wall,” etc.; and again, “ said Armstrong. shall not use said wall, or any part thereof, until he has actually paid said Holden for the one half thereof.” But reliance is placed upon the clause of the instrument which stipulates that the provisions of the agreement shall be deemed and taken to be covenants running with the land, and be binding upon the executors, heirs, devisees and assigns of the parties, and all persons having at any time any interest or estate in said land. "Whatever force may be given to this clause, we think it clear that it can only be held to have the effect of making each of the covenants contained in the instrument run with that portion of the land only to which they severally relate and apply. Thus, if a particular covenant relates only to lot eleven, said clause should not be so construed as to make such covenant run with lot twelve. The covenant by Armstrong to pay Holden for onehalf of the party wall would seem tobe a covenant relating exclusively to lot eleven. The wall being one half on each lot, the half standing on lot eleven, the instant it was built being a permanent addition to that lot, became the property of Armstrong and passed to his grantees. It is well settled in this State, whatever may be the rule elsewhere, that in case of party walls, the center of the wall corresponding with the line between the lots is the line dividing the estates of the adjoining proprietors, and that the instant the wall is built, each becomes the owner of his part to the center of the wall. See Ingals v. Plamondon, 75 Ill. 118. Armstrong, then, in covenanting to pay for one half of the wall, covenanted merely to pay for a structure to be erected on his own lot, and of which the title, as soon as it was built, would be in him. The money to be paid had no reference to lot twelve, and was in no sense a consideration for any burden to which that -lot was to be subjected. It is true the owner of lot eleven obtained,.by virtue of the party wall agreement, an easement of support, that is, the right to have his building supported by means of the half of the wall standing on lot twelve, but no part of the money which Armstrong covenanted to pay was the consideration for that easement, as that was fully and exactly compensated by a corresponding easement acquired by the owner of lot twelve in lot eleven. While the covenant then, was clearly a covenant running with lot eleven, we see no principle upon which it can be held to run with lot twelve. it is true that the decisions are far from being harmonious on this subject, but it will be found that most, if not all the cases which hold that the right of the covenantee to compensation runs with his land and passes to his grantee, are based upon th'e theory that, until compensation is made, the covenantee is the owner of the entire wall, which, of course, would pass to his grantee as appurtenant to his lot. On that theory, the structure for which the covenantor undertakes to make compensation, is, until paid for, a part of the covenantee’s lot, and his title or that of his grantee is only divested by the performance of the covenant. Under these circumstances, it would logically follow that the right to compensation should run with the title to the structure to be paid for. In Main v. Cumston, 98 Mass. 317, the grantee of a party who had built a wall under a party wall agreement, similar to the one in the case at bar, brought suit against the owner of the adjacent lot, for the cost of one half of the wall, and the court, in sustaining his right to bring the action, hold that the property in the whole wall passed to him by the deed under which he claimed title, and that he had a right to maintain the whole wall as a part of his house, until the owner of the adjacent lot made use of it. But in Joy v. Boston Penny Savings Bank, llo Mass. 60, where the party wall contract was not under seal, it was held that grantee of the party building the wall could not recover, the decision being placed upon the ground that, the contract not being under seal, the plaintiff’s grantor acquired no interest in the adjoining land, and retained no title in that part of the wall which extended be= yond his own line. In blew York, several cases decided by courts of inferior jurisdiction are reported, in which it is held that under party wall agreements like the present, the right to compensation for one half of the cost of the wall runs with the land, and passes to the grantee of the covenantee. The case most nearly in point is that of Weyman’s Executors v. Eingold, 1 Bradford, 40, decided by the Surrogate Court of the city of Mew York. That decision rests upon the theory that the adjoining owners became tenants in common of the party wall, and the land on which the same was built, and it was held that as the covenantee, in conveying, “ passed all his title to the entire wall, the right to use the wall could be required of its owner, the assignee, only upon the terms of the covenant, payment of its value to the covenantee or his assigns.” In Burlock v. Peck, 2 Duer, 99, decided by the Superior Court of the city of Hew York, it was held that under a similar party wall agreement, the entire party wall, when built, became the sole property of the party building it, and as such, passed to his grantee, and that the owner of the adjoining lot could appropriate to his own use the grantee’s property in the wall only by paying him one half of its value. Directly the contrary conclusion was reached in .blew York by the Commission of Appeals, in Cole v. Hughes, 54 N. Y. 444, in which it was held that, where an owner of land builds a party wall under an agreement with the adjoining owner, that, when the latter shall use it, he will pay the expense of his portion of the wall, the right to compensation is personal to the builder, and does not pass by a grant of his land. This same rule was again laid down by the Court of Appeals in Hart v. Lyon, 90 N. Y. 663, and thus seems now to be the settled law of that State. We are of the opinion, both from reason and authority, that the covenant in question was personal to Holden, and that he alone is entitled to payment for one half of the cost of said party wall. The decree will therefore be reversed, with directions to the court below to enter a decree directing the payment to said Holden, of the money paid into court by said Kedzie, and that the appellee pay the costs of the suit. Decree reversed.