Tomblin v. Fish

Bailey, P. J. This case, in our opinion, is clearly distinguishable from that of Gibson v. Holden, relied upon by counsel for the plaintiff in error. See 18 Chicago Legal News, 95; Also Holden v. Gibson, 16 Bradwell, 411. In that case the contract, as interpreted by the Supreme Court, constituted the owners of the adjoining lots joint proprietors of the party wall from the moment it was built. That interpretation resulted from various provisions which do not appear in the contract before us. It was there agreed that the wall which Holden proposed to build should continue to be a party wall forever, which the court held- to manifestly mean, from the time of its erection. It was further provided that said owners should share jointly in the expense of keeping, maintaining, repairing and rebuilding the wall, whether Armstrong, the other owner, made use of it or not. The amount to be paid by Armstrong was, not one half of the value of the wall at the time he chose to appropriate it, but one half of the cost of its erection. In the light of these provisions, the contract was held to be one in which Holden undertook to. advance the money and build a party wall for the joint benefit of himself and Armstrong, and of which Armstrong was to become at once invested, jointly with Holden, with the title and owneiship, one half of the cost to be repaid to Holden wdienever Armstrong or his grantee should make use of the wall, Holden in the meantime to have sole possession of the wall as security for such payment. Hone of the foregoing provisions which so clearly distinguish the case of Gibson v. Holden from many of the cases involving party wall contracts, seem to be present in the contract now before us. This contract contains no language which constituted the owners of the adjoining lots joint proprietors of the party wall at the time of its erection. After reciting that it was the wish of both parties that a party wall of certain dimensions should be erected so as to stand one half on each lot, and that it was the intention of the plaintiff to erect a building on his lot, the east wall of which was to be used by said parties as a party Avail, the contract gives permission and license to the plaintiff to ¡)la.ce the center of the east wall of his building on the division line between said lots ; and it is then covenanted that the other party to the contract, his heirs and assigns, might use such Avail, upon the express condition, however, that before doing so, he or they should pay or secure to the plaintiff, his heirs or assigns, one half of the value of the wall or of so much of it as should be thus used. The amount to be paid for one half of the Avail Avas to be determined, not from its cost, but from- its value at the time of its appropriation by the adjoining owner. The liability r of such owner to contribute to the expense of repairing or rebuilding the wall was limited to so much or such portions of it as should be used by him, and consequently his liability to make • such contribution could not arise until after the appropriation of the wall, or some portion of it by him. The distinctions here pointed out are fully recognized in Gibson v. Holden, in the following language: “Cases, therefore, where parties are, by the deed under which they take title, given one half of a wall as a party wall, when and upon condition of making payment, and cases in which the owner of one lot has licensed the owner of the adjoining lot to build a Avail for himself, resting one half of it on each lot, and reserving the privilege of thereafter purchasing one half of the wall as a party wall, are not analogous. In all such cases the title to the whole wall may be regarded as appurt enant to the lot of the builder, and so passing by every conveyance of it, until the severance of the half by the payment of the purchase money. The sale of the half of the wall does not occur, nor the title to it pass in those cases, until the jDayment is made, and so, necessarily, it is constructively a sale by the assignee of so much of the wall. His right to the purchase money is not because he is the assignee of a covenant running with the land, but because he is the vendor of so much of the wall.” The present case comes clearly within the rule thus laid down. The pica, the truth of which is admitted by the demurrer, alleges a conveyance by the plaintiff, of his lot, prior to the appropriation or use of any portion of the party wall by the defendant. Such conveyance carried with it the entire wall, and the right to payment for the half of it when used by the defendant passed to the plaintiff’s grantees. It follows that the plea presented a good defense, and that the demurrer was properly overruled. Judgment affirm,ed.