Pillsbury v. Morris

Vanderburgh, J. On the 13th day of October, 1876, Franklin Steele was the owner of the premises described in the complaint, and, in contemplation of a lease thereof to one Sanford S. Small, of the same date, entered into an agreement of that date with the latter in and by which, in consideration of the lease to be so executed by the parties, and in consideration of the covenants agreed to be kept and performed by Steele in such agreement, Small agreed to commence at once the construction of a business block oni the premises, which are particularly described in the agreement, and complete the same within a time specified, according to the specifications therein mentioned. It was further agreed that Steele should unite with Small in a mortgage upon the premises; and it was also provid [496] ed therein “that separate leases might be made, each containing the aforesaid conditions and provisions, of portions of such land.” And the agreement contained certain later and additional specific provisions, among which are the following: “Nothing in this agreement shall be so construed as to impair and render inoperative any covenant or agreement in the lease or leases to be made as hereinbe-fore specified and contemplated.” “It is further covenanted and agreed by and between the parties hereto that all covenants, agreements, grants, or undertakings assumed, made, granted, or undertaken by either party to this contract shall bind the heirs, executors, administrators, and assigns as fully and effectually as if the same heirs, executors, administrators, and assigns had been particularly mentioned in each of said covenants, agreements, grants, and undertakings.” “The said party of the second part [Steele] grants to said first party the right to erect one-half of the walls of said building on the side towards Kansas street and the side towards Utah street on the land adjoining the above-described premises; and the said party of the second part, or his assigns, will pay the said first party the value of one-half of party walls whenever said second party or his assigns shall use the same.” It also appears that Small, in pursuance of the contract, proceeded to erect a building on the northerly side of the lot so agreed to be leased, and erected the party wall as agreed, being the wall in controversy here; and, after the construction thereof, the lease contemplated by the contract referred to was executed, in January, 1877, but bearing date as of October 13, 1876, which lease made provision for the execution of a mortgage, as required by the contract just mentioned, but made no reference to the party wall. A mortgage was accordingly executed upon the leased premises by Steele and Small, which was afterwards foreclosed, and the premises redeemed from the foreclosure sale by Steele, as he was authorized to do by the terms of the lease. Small assigned to one Cook the leasehold interest held by him, under the lease above mentioned, reserving, however, the rights to the northwesterly party wall secured to him by the contract with Steele. By the terms of the assignment, the assignee agreed to assume and pay the mortgage upon the premises. The court finds that on.the 30th day of July, 1877, [497] Small, for a valuable consideration, granted, assigned, and transferred to tbe plaintiff all bis right, title, and interest in and to the party wall in question, and all moneys which might become due under the contract, for the value of the wall when it should be used by Steele, his heirs or assigns; and this finding is not objected to by the appellant. Steele having died intestate, administration was had on his estate, which was duly partitioned among his heirs, and the land next adjoining the leased premises referred to and including one-half of the party wall in question, which Steele agreed to pay for, was duly assigned to this defendant, “subject to the party-wall contract;” and the premises so assigned to defendant have been leased by her for a term of years, with right of renewal; and the lessees have erected a building thereon, and are using the party wall in question for its entire length. Upon the facts found, the court held that the defendant took her interest in the land as assignee of Steele, charged with the obligation to pay for one-half the party wall in question, by virtue of the original contract with Steele, and in conformity with the decree of the probate court. 1. It is evident that the defendant stands in Steele’s shoes as respects the enforcement of the contract. Her lessees are in possession under her, and she is bound to protect them. The wall is embraced in their lease, which contains.no covenant releasing her or binding them in respect to the obligations of the contract. She is, by her tenant, enjoying the possession of the wall and the rents accruing therefrom. Scott v. McMillan, 16 N. Y. State Reporter, 795, (City Ct. N. Y.), (4 N. Y. Supp. 435.) This was a sufficient “user” of the wall, within the contract. 2. The evidence sufficiently identifies the party wall so assigned to defendant with the one contracted for by Steele, and erected by Small as above stated. 3. The covenant in respect to the party wall in the original contract was not merged in the lease. It is obvious that the stipulations in respect to the lease were not the sole purpose of the contract, and other provisions therein, including that in respect to the party wall, w-ere clearly independent, and intended to -sur vive the execution of the lease. (Opinion published 56 N. W. Rep. 170.) 4. Tbe adjoining owners of a party wall and tbe land covered by it bave each an easement in that portion thereof owned by tbe other by virtue of tbe party-wall contract, which runs with tbe land, but this is entirely independent of tbe question of tbe original cost or expense incurred in erecting it. It Was competent for tbe parties to provide bow, when, and to whom tbe cost of bis portion thereof should be paid by either party, and to make tbe covenant to pay therefor a mere personal covenant, with tbe covenantee, and sever-able from bis ownership of tbe land; and this was clearly tbe intention of tbe parties in this case, to be gathered from tbe language of tbe contract. Small was to go on and build tbe party wall at bis own cost and expense. Tbe wall, when so erected, would stand for tbe mutual benefit of tbe adjoining owners, but it was agreed that Steele or bis assigns should pay to Small tbe value of one-bal? of tbe wall whenever be (Steele) or bis assigns should use tbe same. This covenant was personal to Small, as much so as if Steele bad made tbe covenant with tbe contractor who built tbe wall to pay for his half at some future time. Tbe right of action remained in Small, notwithstanding the transfer of tbe leasehold interest, and passed by assignment to tbe plaintiff. 5. Tbe court, in tbe exercise of its equitable powers, adjudged tbe amount due plaintiff to be a lien upon tbe interest of tbe defendant in tbe real property aforesaid, assigned to her by tbe probate court, “subject to tbe party-wall contract.” In adjusting .the rights of tbe heirs of Steele in tbe distribution of bis estate, we see no reason why tbe land in question might not be charged with tbe expense of tbe wall built upon it; and, as tbe decree of tbe probate court has been allowed to stand without question, it must be held binding on tbe defendant, and she .took tbe property charged with tbe obligations of tbe contract. Judgment affirmed.