Wickersham v. Orr

Wright, C. J. Plaintiff proposed to prove by a witness, a verbal contract between Hicks and Wickersham and defendant, made in the summer of 1856, in relation to the terms upon which defendant had permission to use the wall. This was objected to upon the ground that it was a contract rela [258] ting to a party wall, and as snob should have been in writing. The objection was overruled, and defendant excepted. To sustain this exception, appellant relies upon section 12, chapter 86, page 182, Laws 1855.. This section evidently refers to the special agreements therein specified, and not to such as in no manner differ from the contract which the law makes for the parties. The contract spoken-of by the witness in this instance, was only that which this statute would compel the defendant to carry out, and if entirely excluded would not change the legal rights of the parties. If there was error, therefore, it was error without prejudice, and of course no cause for reversal. The next exception relates to the admission of Leslie, to testify in relation to the contract under which a wall was built by plaintiff, the objection being that by this agreement he was personally liable, and hence interested in throwing that liability upon this defendant. To this it seems to us that appellee well interposes two answers. The first is that the only contract of which the witness speaks, related to a wall which was blown down and never used by either party, and not to the one now in controversy, which was built after this, and as to which it is not claimed there was, between Leslie and plaintiff, any contract, except so far as relates to the permission to build one half of it on Leslie’s land. The second is, that if the witness was liable to plaintiff upon any contract, so he was liable over to defendant upon the full covenants of his deed, whereby he was held for this or any other incumbrance upon the land, and thus his interest was balanced. At the time Leslie sold to Orr, he advised him of the location of the wall; that it belonged to plaintiff, and that defendant would have to pay for it if he used it. It is objected that, as defendant had a deed with full covenants, the proof of the conversation or verbal contract, tended to, vary or contradict the deed; that the wall was on the land and part of it, and as such, passed with it, and that parol declarations of the grantor are not competent to divest the grantee of the estate included in the deed. Considered as [259] testimony to vary or contradict tbe deed, it is of course inadmissible ; and in a suit between tbe parties to tbe deed upon tbe covenants therein, it would not be claimed that it could be shown that a part of tbe land was reserved by a parol agreement. In favor of a third party, however, claiming tbe benefit of an incumbrance, lien or interest in the property, it is competent to show by parol that tbe grantee bad notice of such outstanding incumbrance or interest. While tbe deed may contain fall covenants, and while tbe grant- or may be estopped thereby, as between Mm and bis grantee, from saying that be sold, subject to an incumbrance, it is a very different thing where a third party, in maintaining the priority of his lien, seeks to show that the grantee had notice of it at, or prior to, the time of his purchase. The manner of communicating this notice is immaterial, and though given in such a way as to become incorporated into the contract of sale, but not in the deed, it might be shown by parol, would bind the purchaser as between him and third persons, while it might not, in a controversy with the grantor. The distinction, we think, is most manifest and well sustained. If the plaintiff built the wall under a parol license from Leslie, the owner, and if the defendant took the south park of the lot from Leslie, with notice of this license and the interest that plaintiff had in the wall by virtue of such license, then this interest could not be revoked either by Leslie or his grantee, and if the grantee occupied the wall, he would be liable for the part thus used or occupied. Upon this subject the authorities are not entirely uniform, nor are they, in many cases, free from obscurity. The above rule, however, we believe to be fairly and legitimately deducible from many of the best considered cases. Without quoting we refer to the following: Osgood v. Howard, 6 Maine 452; Russel v. Richards, 10 Ib. 429; Hilbourne v. Brown, 12 Ib. 162; Smith v. Benson, 1 Hill. 576; Rennik v. Kern, 14 S. & R. 267; Ricker v. Kelley, 1 Maine 117; Clement v. Durbin, 5 Ib. 9; Wells v. Banister, 4 Mass. 415; and the full note of the editors, to Renick v. Kern, 2 Am. L. Cases 686, [260] 706; also, Nettleman v. Likes, 8 Met. 34; 5 Pick. 487; 8 Ib. 203; 18 Ib. 417. Tbe rule applies, as its statement implies, to cases whereof the license has been executed by the building of the wall; the legal right to the soil is not, of course, divested, and the right of the license rests upon the principle essential to the transaction of the business of life, and clearly in accordance with the purposes of justice, that an act done with the sanction, either express or implied, of the owner of the land, is not to be treated as a tort; or the other, and further one, that when money or labor has been expended, on the land of another, upon the faith of a promise given by him, the owner shall not assert his legal right to the soil so as to interfere with that use or enjoyment of the building or structure erected as the result of such promise, by the money and labor of the licensee. If the structure, or any portion of it, is enjoyed, a3 in this case, by the owner of the soil, under a contract express or implied, to pay for the use of the same, or what a part of it is reasonably worth, the licensee may recover such value in a court of law. Whether the plaintiff did, or did not, have the license claimed, and whether the wall was built alone under a contract that Leslie should pay for one half of it, the plaintiiF looking alone to his personal responsibility, were questions of fact properly left to the jury. Plaintiff owned the north part of the lot at the time of building the wall, but subsequently sold the same to Hicks and Wickersham, who afterwards reconveyed to him. Defendant purchased from Leslie, with notice, as the jury must have found under the instructions of the court, of plaintiiFs interest in the wall, and of the obligation of any person using the same, to pay what one half was reasonably worth. The consent and undertaking of defendant to pay this much, could well be inferred by the jury, from the testimony, as well as the further fact, that it was upon the faith of this undertaking that Hicks and Wickersham permitted him to use the wall. ■ Under such circumstances, the act of defend [261] ant in appropriating the half of the wall for the purposes of his building, was in no proper sense a tort. The jury could well conclude that, based upon the understanding existing between- plaintiff and Leslie, the owners of the property at the time of the appropriation, recognized the wall as a wall in common, and that defendant, instead of contributing in advance one half of what the same cost, was nevertheless to pay its reasonable yalue. The amount thus due or claimed, was assigned by the parties holding the- title, and subsequently conveying it, to plaintiff, so as to invest him with the full legal right to sue for it in his own name. In this view of the case plaintiff’s right to recover, only finds support from the arrangement between Mm and Leslie, so far as that tends to show that he and his grantees (afterwards his grantors) were not trespassers, but that they took possession and held under a, license, recognized subsequently by both Leslie and his grantee. If defendant undertook, and is sought to be held upon a promise to pay the debt of Leslie, he is not bound, for- the promise would be within the statute of frauds. If bound at all, it is upon a promise to pay his own debt, for a consideration running directly to him. And this the jury must have found, and with them finding, we see no good reason for interfering. Judgment affirmed.