Indebitatus Assumpsit for money laid out and expended &c.
The case was this. The Plaintiff, Ingles, had a house in the
district of Southwark, against the wall of which one Waters had
erected another house. Waters becoming insolvent, his house, on
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the 1st of August, 1774, was sold under a Venditioni Exponas to
one Ridley; but he, also, falling into distress, the house, by
virtue of a similar process against him, was again sold, on the 7th
of March, 1776, to the Defendant, Bringhurst, for a full and
valuable consideration. In the advertisements published on the
occasion of these successive sales, no other incumberance was
mentioned, than a ground-rent of L 6; and the Defendant had
remained in quiet possession of the premisses until about two or
three years ago, when the Plaintiff demanded of him one half of the
cost of the party wall between the above mentioned houses; and, the
demand being refused, he brought this action to recover the amount.
The question, therefore, agitated on the trial, was, whether the
claim for a reimbursement of a moiety of the cost of a party wall,
under the Act of Assembly, (see 1 State Laws 293.) was a lien upon
the land, or only a personal charge against the builder of the
second house? The Plaintiff called several witnesses (who had been
Regulators of considerable experience) in hopes of establishing a
custom favorable to his pretensions. They only proved, however,
that the valuation of a party wall was never made untill the second
house was built; and that, even afterwards, it was frequently
postponed for four or five years. One of the witnesses, indeed,
said that he remembered an instance where the purchaser paid the
moiety of the cost of the party wall, and not the original builder
of the second house; but he could not ascertain whether this was
the effect of any agreement of the parties, or not. The argument
was conducted by Levy for the Plaintiff, and by Tilghman and
Hallowell for the Defendant. For the Plaintiff, it was urged that,
in a variety of cases, the law favored and supported a usage in
particular matters, even before it had attained all the
characteristic qualities of a custom. Thus, the general rule of law
entitles a Lessee pur auter vie to emblements, but not a Tenant for
years; and yet, on the usage of a particular place, it was
determined, that where there was a lease for one year from the 25th
of March, the Lessee might (after the expiration of the term on the
succeeding 25th of March) enter at the October harvest, upon the
arrable lands, and remove the crop, notwithstanding the positive
limitation of his contract. Doug. 361. A warrant of attorney to
confess a judgment is, by the course of the Court (which is the law
of the Court) made irrevocable; and yet it is the nature of all
letters of attorney to be revocable. Farresl. 95. In Pennsylvania,
likewise, several striking precedents have been established upon
this point. On proof that it was a usage among Lanners to work in
and out for three vatches, it was lately decided in this Court,
that, for that purpose, the lessee of a Tan-yard was entitled to
hold over the possession, although his agreement was for a fixed
and determinate time. So, in the case of a Feme Couvert, who could
not at common law convey her maiden lands but by Fine, yet, as it
had been the constant usage of the province to make such
conveyances
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341, 343
by deeds of bargain and sale, the usage was recognized by the
Court, and the deeds adjudged to be obligatory. Lloyd's Lessee
versus Taylor ant. 17. In the case at bar, it is proved to have
been the general usage, not to value the party wall till the second
house is built; and, even then, it is frequently delayed for
several years; so that it must necessarily be inferred, that the
usage extends to make the purchasor of the second house, as liable
as the person who built it, for the moiety of the partition; of
which, indeed, all the positive evidence has been given, that the
nature of the case affords.
For the Defendant two points were made. 1st. That the action
could not be maintained at common law. And 2nd. That it was not
authorized by the Act of Assembly.
1. On the first point, it was observed, that bona fide
purchasors for a valuable consideration are highly favored in law;
2 Black. Com. 247. and of these, purchasors under an execution are
the most esteemed; insomuch that if the execution is afterwards set
aside for irregularity, they shall nevertheless hold the lands. 2
Bac. Abr. 370. 1 State Laws 52. Pursuing this regard for honest
purchasors, if a Trustee sells trusts lands for a valuable
consideration, without giving notice of the trust, the law declares
that the buyer shall hold the ands discharged. Cas. temp. Talb 260.
and even if a man purchases for a valuable consideration with
notice of a settlement, from one who bought without notice, he
shall shelter himself under the first purchasor. 1 Atk. 571. The
Defendant is a bona fide purchasor under an execution, for a
valuable consideration, without notice of the Plaintiff's demand:
He is, therefore, in all respects, within the benefit of these
authorities, and ought not to be made responsible for the
negligence of the Plaintiff, who had it in his power to recover
from the original owner of the house, who knew of the sales, who
never gave notice of his claim at the times of sale, and who has
suffered so long a period to elapse before he made a demand, as to
justify a presumption, that, whatever was due, has been paid. Cowp.
109. If, indeed, a man will stand by at the time of sale, and not
disclose his lien, the law deems him guilty of a fraud, and
postpones his right to that of the purchasor. 2 Atk. 83. Gilb. Eq.
Rep. 85. 1 Ves. 94. In the present case particularly, it would be
highly dangerous, if the rule were otherwise; for, there is no
record, as in the cases of mortgages and judgments, to which a man
can refer in order to ascertain the incumberances that will thus
affect his purchase; nor is there any means by which a remote
purchasor can show that the lien has been discharged by his
predecessors.
It is evident, then, that a lien of this kind can only be
created by the operation of law, or the act of the parties. It is
not pretended that the Defendant is liable from his own act; for,
he neither built the house, nor assumed to pay the money; and, when
the Plaintiff would avail himself of a usage, it is incumbent upon
him to make strict proof of its existence; which he has failed in
doing upon this
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341, 344
occasion, whatever might be the effect of the testimony, as
between Ingles and Waters, the original builders of the houses, to
whom alone it has any relation. 2. Nor, on the second point, is the
action authorized by the Act of Assembly. The words relating to
this controversy are, that the first builder shall be reimbursed
one moiety of the charge of the party wall, or for so much as the
next builder shall have occasion to make use of, before he shall in
any wise use or break into the said wall, &c. Here then is the
remedy which by operation of law is given to the first builder; and
when a statute gives a new remedy the party must take it on the
terms of the Act. 2 Burr. Fitzg. 47. 3 Lev. 48. Fitz. 85. 1 Vent.
104. Stra. The Plaintiff was empowered to compel a reimbursement of
the moiety of his expenses before Waters could use the wall; and if
he has neglected to do so, although it would perhaps be unjust in
Waters himself to refuse the payment, yet there is no legal or
moral obligation that can bind a subsequent purchasor; for, on the
spirit and words of the Act, he had a right to presume that the
claim was already satisfied; or, if he had known that it was not,
he might have insisted on some abatement in the price. The first
builder, indeed, could have no greater lien than the carpenter, or
mason, who built the house. In England, where real estate is not
liable for the payment of single contract debts, if a house
descends to the heir he is not bound to pay the carpenter that
repaired it, who can only resort to the personal estate for
satisfaction. 1 Ves. 155. So here; as the Plaintiff allowed the
second builder to use the party wall before he exacted the
contribution which the law allows; it became a matter of mere
personal confidence; and, however the person of Waters might be
liable, his house and lot were effectually discharged. For the
Plaintiff, in reply. As the Defendant has not relied on the statute
of limitations in his plea, no argument from the lapse of time can
apply. Nor is it any reason that the Plaintiff should lose his
claim, because the Sheriff omitted, or neglected, to make it known
at the time of sale; and there is no ground to presume (nor ought
fraud ever to be presumed, 2 Atk. 83.) that the Plaintiff knew when
the sale was. Incumberances in law or equity are not altered or
affected by a Sheriff's sale. The Sheriff has no authority to bind
a stranger to the process under which he sells: and this
distinguishes the case from that of the Trustee, whose acts are
binding upon the cestuy que trust. It is clear that a mortgage
shall divest the title of a purchasor, though the mortgage was not
mentioned at the sale; for, the Sheriff only sells the right which
the Defendant had in the premisses. The Defendant ought to have
enquired whether the Plaintiff's claim was satisfied; and the law
does not help those who sleep, but only those who are active and
vigilant. The right given by the Act of Assembly to be paid before
is a new and extraordinary one; for, the common law admits of no
compensation until value received. There is not any remedy,
however, pointed out for the recovery of this new right; and it
will
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341, 345
hardly be pretended that an action would lie before the second
house was begun; until which time it is impossible to say how much
of the wall is wanted, nor, consequently, how much contribution is
due. But the Plaintiff does not insist on this new right; he does
not ask for payment before, but long after, his wall has been used;
and, surely, the Legislature that gave a right in the former case,
must have admitted a much stronger right to recover in the latter;
for, he who uses another's property is liable, at all times, to pay
for it. This, indeed, is a principle of natural justice paramount
to all Acts of Assembly; and, as every continuance of a nuisance is
as culpable as the original offence, the Defendant's continuing to
occupy and use the Plaintiff's wall, is, in itself, sufficient to
make him liable to the present demand.
Shippen, President. The principal point in this case is, whether
under our Act of Assembly, the moiety of the cost of a party wall,
is a personal charge against the builder of the second house, or
such a lien upon the house itself, as shall render it liable to the
reimbursement of the first builder, into whose hands soever it may
come? Lien is a technical term, that means a charge upon lands,
running with them, and incumbering them in every change of
ownership; as mortgages, judgments, ground rents &c. There are
some liens, also, created by statute; as, in the very act in
question, where a perpetual lien is clearly given to the first
builder of a party wall, for so much of his neighbour's land, as
one half of the breadth of the wall shall cover. It is enacted, at
the same time, that the second builder, having the use of one half
of the wall, shall reimburse one half of the expense of building
it; which is a reasonable and useful regulation, calculated to
prevent animosities and disputes. Whether, however, a purchasor of
the second house, after it is built, shall be liable to the claim
of the first builder, who has neglected, or declined, to insist
upon the payment, before his wall was broken into, has been made a
question, but, I think, it is easily resolved by attending to the
expression and manifest intent of the law. The Act of Assembly
declares that the first builder shall be reimbursed; but it also
prescribes the time of reimbursement to be, before the second
builder shall in any wise use, or break into the wall. This, it has
been observed, is an indefinite right of payment; for, until the
second house is begun, it cannot always be ascertained how much of
the wall will be wanted, nor, until then, is there any form of
action in which a recovery can be had. But this argument may, at
once, be obviated by considering, that if a man makes a breach in
my wall, he is a trespasser, and, generally speaking, I have a
competent remedy for the injury which he has done. The Act of
Assembly, however, provides, that any person whose lot joins upon
my house, may lawfully use and break into
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341, 346
the wall, if he has first paid me a moiety of the cost of
building it. Now, although no action will lie to recover this
moiety until the second house is actually begun, yet, if it is
begun and a breach made in the wall before the payment, the builder
is considered as a trespasser, notwithstanding half of the wall is
raised upon his ground; and in an action of trespass against him,
he could not justify under this Act. Or, perhaps, the Plaintiff
might wave the trespass and bring an action on the implied
assumption for money paid for the Defendant's use.
The difficulty, indeed, of ascertaining how much the first
builder is entitled to receive, until the second house is erected,
has given rise to the usage that has been proved; but this extends
no further than to show, that the valuation of the party wall is
never made before the second house is built, and often, not until
several years afterwards. The usage, to this effect, may have a
reasonable foundation; but to reach the present case the evidence
of a usage, if at all admissible, ought to have shown, that, for a
long series of years, the owner of the second house, however remote
from the builder, was held liable to pay the moiety of the charge
of the party wall. This has not, I think, been satisfactorily
done.
The Plaintiff then contends for his claim upon another
principle, that, as the Defendant has the use and occupation of the
wall, he ought to be proportionally liable for the cost of building
it; and this would certainly be a strong argument, if a lien
actually existed. But, if the moiety of a party wall is only a
personal charge against the second builder, there is no more reason
that a subsequent purchasor should be responsible for that, than
for the payment of the brickmaker or mason. Considering it,
therefore, as a lien, it will bind the estate, like a mortgage or
judgment; but, considering it as a personal charge, the Plaintiff,
upon an implied contract (as well as the tradesmen who were
employed, upon an express one) must resort to Waters for payment
and satisfaction of his demand.
This, therefore, brings it to the original question, whether, in
this case, a lien exists or not? And the Court are clearly of
opinion that it does not. Why, indeed, should the Legislature have
directed the payment to be made before the breach, if they meant
that the second house should be forever charged with the cost of
the party wall, whoever might be the owner? In almost every
instance of a lien there is some record by which it is announced to
the public, and to which every man may have access. But here, it is
a dormant transaction; the claim is not known when the sale takes
place, so that the purchasor loses the opportunity of indemnitying
himself; and, even if it had been satisfied by the first builder,
or the intermediate purchasor, that is a fact which it cannot be in
the Defendant's power at this time to establish.
Verdict for the Defendant.
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