This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
In New York it is held that the covenant to pay part of the cost runs with the land, if the agreement is general in terms, contemplating the possible construction of the wall by either party in the future, without reference to any present intention of building a wall, while it does not run when it involves a specific agreement that, if the party named build the wall, the other party shall pay part of the cost thereof upon using it. Sebald v. Mulhol-land, 155 N. Y. 455, 50 X. E. 260; Crawford v. Krollpfeiffer, 195 N. Y. 185, 88 N. E. 29.
72. Roche v. Ulman, 104 111. 11; Southworth v. Perring, 71 Kan. 755, 81 Pac. 481, 2 L. R. A. (X. S.) 87, 114 Am. St. Rep. 527,
82 Pac. 785; King v. Wright, 155
Mass. 444, 29 X. E. 644; Kimm v. Griffin, 67 Minn. 25, 64 Am. St. Rep. 385, 69 X. W. 634; Hoffman v. Dickson, 47 Wash. 431, 125 Am. St. Rep. 907, 15 Ann. Cas. 173. 92 Pac. 272, 93 Pac. 523.
73. Jebeles & Colias Confectionery Co. v. Brown. 147 Ala. 593, 11 Ann. Cas. 525, 41 So. 626; Roche v. Ulman. 104 111. 11; Rein-hardt v. Holmes, 143 Mo. App. 212, 127 S. W. 611; Adams v. Noble, 120 Mich. 545, 79 N. W. 810.
There is one decision to the effect that although the covenant was not previously one the burden of which would run with the land, its character in this regard is changed if a subsequent conveyance by the covenant is in terms subject to the party wall agreement. Ellinsburg Lodge Xo. 20, I. O. F. C. v. Collins, 68 Wash. 94, 122 Pac. 602.
74. Standish v. Lawrence, 111 Mass. 1ll; Jordan v. Kraft,33 Neb. 844; Percival v. Colonial In v., Co., 140 Iowa, 275, 24 L. R. A. (N. S.) 293, 115 N. W. 941.
75. Pfeiffer v. .Matthews, 161 Mass. 487, 42 Am. St Rep. 435, 37
2 R. P.-15
Occasionally reference is made in the decisions to the existence in the particular case of notice of the party wall agreement on the part of the person sought to be charged, as if lack of notice might prevent the running of the covenant as against him.76 And it may be assumed that the courts would hesitate to impose such liability on one who purchased the land without notice, actual or constructive, of the agreement.
Occasionally the court, without reference to the doctrine of covenants running with the land, appears to have implied an assumpsit, on the part of a subsequent . grantee, taking with notice of his grantor's agreement that part of the cost of the wall shall be paid upon its user, to make payment accordingly, such assumpsit being implied in favor of the person, whether the original builder or his grantee, who owns the wall at the time of its user by the owner of the other property.77 This implied assumpsit involves a liability,
Not in contract, but in quasi contract. But ordinarily, as before stated,78 no liability is imposed upon one using a wall placed in part on his land by another, in the absence of an agreement on his part, or on the part of his predecessor in title, to make compensation in the case of its use by him. The theory of implied assumpsit, above referred to, appears to be that adopted in England, in order to impose liability on a subsequent grantee of the covenantor.79
N. E. 571; First Nat. Bank v. Security Bank, 61 Minn. 25, 63 N. W. 264. But in Iowa a grantee who purchases with notice that his grantor, who used the wall, has not paid for it as agreed is perhaps liable. Pew v. Buchanan, 72 Iowa, 637, 34 N. W. 453. Per-cival v. Colonial Inv. Co., 140 Iowa, 275, 24 L. R. A. (N. S.) 293, 115 N. W. 941.
76. Lorenzi v. Starmarket, 19 Idaho, 614, 115 Pac. 490. See Roche v. Ullman, 104 111. 11; Harris v. Dozier, 72 111. App. 542; Mcchesney v. Davis, 86 111. App. 380; Richardson v. Tobey, 121 Mass. 457, 23 Am. Rep. 283; Gar-mire v. Willy, 36 Neb. 340, 54 N. W. 562.
In Scottish American Mortgage Co. v. Russell, 20 S. Dak. 310,
104 N. W. 607, it was held that the grantee was not affected with notice of the agreement by reason of the presence of the wall on his land. This was however a proceeding for an injunction, and the decision in favor of defendant may presumably be regarded as based on the theory that the agreement created an equitable charge (Post, note 80) which was effective as against purchasers with notice only.
77. Standish v. Lawrence, 111 Mass. Ill; Richardson v. Tobey, 121 Mass. 457, 23 Am. Rep. 283; Brown v. Pentz, 1 Abb. App. Dec. 227, per Mccoun, J., Burlock v. Peck, 2 Duer 90; and see Piatt v. Eggleston, 20 Ohio St. 414; National Life Ins. Co. v. Lee, 75 Minn. 157, 77 N. W. 794.
In a few cases it has been said that an agreement of the character referred to has the effect of creating an equitable charge,80 or lien,81 so that a grantee claiming under the non builder, if he takes with notice, express or implied, of the agreement to pay for the use of the wall, takes subject thereto. And occasionally such an agreement has apparently been regarded as creating an equitable easement as regards the payment of part of the cost of the wall.82
The view that by such an agreement an equitable lien or charge is created involves the proposition merely that, in case the wall built by the owner of one tract is used by the owner of the other, the liability for the stipulated portion of the cost of the wall may
78. Ante, Sec. 356
79. Christie v. Mitchison, 36 Law Times X. S. 621; Irving v. Turnbull (1900), 2 Q. B. 129. The latter case is criticized in editorial notes, 14 Harv. Law Rev. at p. 297, and 1 Columbia Law Rev. at p. 257.
80. Sharp v. Cheatham, 88 Mo. 498, 57 Am. Rep. 433; Keating v. Korfhage, 88 Mo. 254; Stehr v. Raben, 33 Neb. 437, 50 N. W. 327.
81. Nelson v. Mcewen, 35 111. App. 100; First Nat. Bank v. Security Bank, 61 Minn. 25, 63 N. W. 264. Arnold v. Chamberlain, 14 Tex. Civ. App. 634 (express agreement for lien); Parsons v. Baltimore Building & L. Ass'n, 44 W. Va. 335, 67 Am. St. Rep. 769, 29 N. E. 999.
In one state a grantee has been regarded, by force of the statute as to party walls, as taking the land subject to a lien for a portion of the cost of the wall, if it was used by his grantor. Pew v. Buchanan, 72 Iowa, 637, 34 X. W. 453.
82. Sharp v. Cheatham, 88 Mo. 498, 57 Am. Rep. 433; Keating v. Korfhage, 88 Mo. 254; Stehr v. Raben, 33 Neb. 437, 50 N. W. 327.
Be enforced against the land by foreclosure sale But whether such a lien should be recognized in the absence of any language showing an intention to create it may well be questioned. And the theory of equitable charge or lien furnishes no ground for imposing a personal liability upon a subsequent grantee of the land,83 though it is not, it seems, inconsistent with the existence of such liability.84 That is, a grantee may in some jurisdictions be personally liable as upon a covenant running with the land, and the covenantee at the same time have an equitable lien upon his land for part of the cost of the wall. The view that by such an agreement an equitable easement is created appears to involve the proposition that as one who takes with notice of an agreement by his predecessor in title that the land shall not be used in a certain way may be restrained from making such use,84a so one who takes with notice of an agreement that the land shall not be used without the making of a certain payment, may be restrained from making such use without making the payment.85 In so far as the theory of equitable easement, however, may involve the assumption that the right to use the wall is conditional upon payment of part of the cost thereof, it does not accord with the construction sometimes, perhaps usually, placed upon a party wall agreement, that the right to use the wall is not dependent upon payment of the stipulated part of the cost.80
83. See Keating v. Korfhage, 88 Mo. 524; Parsons v. Baltimore Bldg. & L. Ass'n, 44 W. Va. 335, 67 Am. St. Rep. 769, 29 N. E. 999.
84. First Nat. Bank v. Security Bank, 61 Minn. 25, 63 N. W. 624; Roche v. Ullman. 104 111. 11; Harris v. Dozier, 72 111. App. 542.
Garmire v. Willy. 36 Neb. 340, 54 N. W. 562. 84a. Post, Sec. 394.
85. See Gibson v. Holden, 115 111. 199, 56 Am. Rep. 146, 3 N. E. 282.
86. Ante, Sec. 361, note 39.