Kells v. Helm

George, C. J., delivered the opinion of the court. In 1866, P. T. Cooper and Angelo Miazza were severally owners of adjacent lots in the city of Jackson.' Cooper desiring to erect a house on his lot, he and Miazza agreed that Coojser should, at his own expense, erect the eastern wall of his house on their common boundary-line, and that when Miazza should be ready to build, he should pay one-half the value of the wall, and use it as the western wall of any building he should erect on his lot. Accordingly, Cooper erected his building in 1866, with its eastern wall located as agreed on ; and, in 1867, Miazza erected on his lot a building known as Angelo’s Hall, using the wall which had been erected by Cooper, in pursuance of their agreement. In the same year, and after the completion [703] of Angelo’s Hall, Miazza conveyed Ms lot in trust to secure J. & T. Green in the sum of $10,000, then advanced to him by the Greens on the security of the deed in trust. In 1868, Cooper sold his lot to the appellant, Kells, and at the same time assigned to Kells his claim against Miazza for the value of. one-half of the wall; and Miazza and Kells agreed, in writing, that the amount of this claim was $315, that Kells was entitled to it as assignee of Cooper, and that Miazza would pay the same to Kells within twelve months. It was stipulated in this writing that Kells did not thereby release his lien on the lot of Miazza, who at the same time admitted and recognized its existence and validity. This agreement was duly acknowledged by Miazza, and recorded; but it was not made till after the making and due registration of the deed in trust to the Greens, under which the appellees claim title, in virtue of a sale made in pursuance of it by the trustee. This sale was not made till after the registration of the above-mentioned agreement between Kells and Miazza. There is a stipulation in the record, signed by the counsel of both parties, that J. & T. Green, at the time they advanced their money to Miazza and took the deed in trust as security for its payment, had no actual knowledge of the claim of appellant or his vendor, Cooper; but that long prior to the building of Angelo’s Hall, the Cooper-Kells building had been erected, and that its eastern wall constituted the western wall of Angelo’s Hall, and the defendants and J. & T. Green then knew these facts. On this state of facts, Kells filed his bill in equity, in which he asserted a lien on the lot on which Angelo’s Hall was erected, for the amount of his claim as assignee of Cooper, as adjusted between him and Miazza in 1868. The chancellor dismissed the bill, and Kells appealed. If it be conceded that the appellant acquired a lien on the lot of Miazza, by virtue of the assignment by Cooper to him of the claim for one-half of the cost of the wall, it would not follow that tMs claim could be asserted against these defendants, who [704] are purchasers, without notice, for a valuable consideration, or hold under the Greens, who were such. The agreement between Cooper and Miazza was never recorded ; and it is admitted that the Greens had no actual knowledge of the claim arising out of it, and now set up by the appellant. That they knew, when they advanced their money and took the deed in trust, that Cooper had built the wall, and that afterwards Miazza had used it as one of the walls of his building, would not constitute notice ; for it was not shown that they knew that Miazza did not contribute his share to the building of the wall in the first instance; and if it was so shown, they would have had the right to presume that Miazza had afterwards paid his share of the cost of the wall, since he was not allowed by law to appropriate the wall to his use, without first making payment of one-half its cost or value. - The subsequent written agreement made by Miazza and Kells can have no influence on the controversy. It was made after the rights of the Greens had attached. It can have no other effect than as a subsequent encumbrance; and the defendants, Helm & Yerger, having made a valid purchase under the senior encumbrance, are entitled to all the rights and privileges of the first encumbrancer, and are not affected by the notice which they had, at the time of their purchase, of the existence of the appellant’s claim. Decree affirmed.