McChesney v. Davis

Mr. Justice Windes delivered the opinion of the court. Counsel for appellant argue, first, that the agreement in question was only a personal covenant, and did not run with the land; second, that there was no evidence of the cost price of the wall at the time of its use; third, that Catherine A. Hall had no right to contract with Mrs. Preston; fourth, that the instruction given by the court was erroneous; fifth, that the discontinuance as to Mrs. Preston was error; and, sixth, that there was irregular practice on the motion for new trial. As to the first contention of appellant, we are of opinion that it is unnecessary to hold that the covenant in the party wall agreement was such that it ran with the land in order to sustain this judgment. It is true that at the time the wall was built there was no agreement on the part of Mrs. Preston to contribute toward the expense of it, but it does not follow therefrom that the title to such part of it as was on Mrs. Preston’s lot vested in her without her consent. The agreement made by her subsequently shows how she regarded the building of the wall partly on her lot. This agreement states, “ It is the intention of the parties to this agreement that said wall shall remain and be used as a party wall on said lots;” also that the “ party of the second part, her heirs and assigns, shall, and may at all times hereafter, have the full and free liberty and privilege of joining to and using the said wall, etc.,” * * * but upon the express condition that before making any use of the wall the second party, her heirs and assigns, should pay one-half part of the value of the wall to Mrs. Hall, her heirs and assigns. These provisions of the agreement show as clearly as words could, that it was not the intention of Mrs. Preston to claim title to any part of the wall without first reimbursing Mrs. Hall, or her assigns, for its cost. We can perceive no difference because the contract was made after the wall had been built by Mrs. Hall. There was a sufficient consideration to support it in the agreement of Mrs. Hall to allow the use of her part of the wall, and even if there was not, appellant can not question it under the evidence in this case, the contract being under seal and importing a consideration. In Gibson v. Holden, 115 Ill. 199, which it is claimed by appellant controls the case at bar, and in her .favor, in speaking of cases like the one hereunder consideration, and distinguishing them from the one decided, the court say: “ In all such cases the title to the whole wall may be regarded as appurtenant to the lot of the builder, and so passing by every conveyance of it until the severance of the one-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 payment 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.” So here the contract is a recognition by Mrs. Preston that she is not the owner of the wall, and is an undertaking on her part and her assigns to become the owner upon payment therefor, whenever she or they should desire to use the wall. The same principle is announced in the carefully considered case of Tomblin v. Fish, 18 Ill. App. 439, which was decided with express reference to and distinguished from the Gibson case, supra. The learned Judge Bailey, in his opinion, quotes the language above from that case. The Tomblin case is expressly approved by the Supreme Court in Mickel v. York, 175 Ill. 62-70, which holds that the builder of a wall, under a contract similar to the one here in question, except that it was made before the wall was built, was the owner of such wall until the other party to the contract should make payment therefor, and that the former was liable for damages for failure to maintain it in a safe condition. See also Richardson v. Tobey, 121 Mass. 459; Keteltas v. Penfold, 4 E. D. Smith, 133; Roche v. Ullman, 104 Ill. 11-19. The second contention is not supported by the evidence. It is clear, from a consideration of the whole evidence, that the value of the wall was estimated as of the year when it was used by appellant’s intestate, to wit, 1886. The evidence was with reference to the whole year, and there is no evidence that the value of the Wall varied at different times during that year. If such were the fact, it was incumbent upon appellant to show it. The third contention, that Mrs. Hall had no right to contract, is not sustained by the evidence. Her deed to Baldwin is dated May 1, 1883, but was acknowledged May 12, 1883, and it was shown that the deed was not delivered until after the making of the contract with Mrs. Preston. The fourth contention of appellant, that the instruction given by the court was erroneous, is not tenable. It is argued in this connection that notice of a fact affecting the title to an agent conducting negotiations for the purchase of real estate is not notice to his principal. The authorities cited by counsel are not applicable to this case nor to the instruction in question. The general rule is that notice to the agent is notice to the principal, if the knowledge of the facts is acquired while the agent is acting for his principal. Williams v. Tatnall, 29 Ill. 553. The evidence shows that the notice to the agent in this case was during the time he was acting for his principal. Moreover the wall in question stood partly upon lot 9, at the time of its purchase by Alexander McChesney, and constituted an apparent sign of servitude, and was sufficient of itself to put a purchaser upon inquiry as to what was the nature of the servitude. Ingalls v. Plamonden, 75 Ill. 118; Washburn on Easements, *54 and *459. Fifth. The discontinuance of the suit as to Mrs. Preston and the amendment of the pleadings accordingly were justified by the statute. Hurd’s Rev. Stat., Chap. 110, Sec. 24; Black v. Womer, 100 Ill. 328. As to the sixth claim, we think there was no error. It was incumbent upon the appellant, Judge Ewing’s term having expired, to produce to the court, Judge Chytraus, a transcript of the testimony, if necessary, for the consideration of the court on a motion for a new trial. Without the testimony, so far as appears from this record, the court should have overruled the motion. In any event appellant can not complain of the action of the court in considering the transcript presented to it, because no exception was taken. That .the court heard the motion in the absence of the pleas of general issue could in no way prejudice appellant. It was conceded that such pleas were filed, and appellant’s counsel was directed to substitute the same in making up the record. The judgment is affirmed.