INGLES verʃus BRINGHURST.
I
NDEBITATUS Aʃʃumpʃit for money laid out and expended &c The cafe was this.– The Plaintiff, Ingles, had a houfe in the diftrict of Southwark, againft the wall of which one Waters had erected another houfe. Waters becoming infolvent, his houfe,on 1788.
the 1ft of Auguʃt, 1774 was fold under a Venditioni Expond to one Ridley but he, alfo (illegible text) into diftrefs, the houfe, by virtue of a fimilar procefs againft him, was again fold, on the 7th of (illegible text) 1776, to the Defendant, Bringhurʃt, for a full and valuable confideration. In the advertifements publifhed on the occafion of thefe fucceftive fales, no other incumberance was mentioned, than a ground-rent of Ł 6: and the Defendant had remained in quite poffeffion of the premiffes until about two or three years ago, when the Plaintiff demanded of him one half of the coft of the party wall between the above mentioned houfes; and, the demand being refufed, he brought this action to recover the amount.
The queftion, therefore, agitated on the trial, was, whether the claim for a reimburfement of a moiety of the coft of a party wall, under the Act of Affembly, (fee 1 State Laws 293.) was a lien upon the land, or only a perfonal charge againft the builder of the fecond houfe?
The Plaintiff called feveral witneffes (who had been Regulators of confiderable experience) in hopes of eftablifhing a cuftom favorable to his pretenfions. They only proved, however, that the valuation of a party wall was never made until the fecond houfe was built; and that, even afterwards, it was frequently poftponed for four or five years. One of the witneffes, indeed, faid, that he remembered an inftance where the purchafer paid the moiety of the coft of the party wall, and not the original builder of the fecond houfe; but he could not afcertain whether this was the effect of any agreement of the parties, or not.
For the Plaintiƒƒ, it was urged, that, in a variety of cafes, the law favored and fupported a ufage in particular matters, even before it had attained all the characteriftic qualities of a cuftom. Thus, the general rule of law entitles a Leffee pur auter vie to emblements, but not a Tenant for years ; and yet, on the ufage of a particular place, it was determined, that where there was a leafe for one year from the 25th of March, the Leffee might (after the expiration of the term on the fucceeding 25th of March) enter at the October harveft, upon the arrable lands, and remove the crop, notwithftanding the pofitive limitation of his contract. Doug. 361. A warrant of attorney to confefs a judgment is, by the courfe of the Court (which is the law of the Court) made irrevocable ; and yet it in the nature of all letters of attorney to be revocable. Farreʃt. 95. In Pennʃylvania, likewife, feveral ftriking precedents have been eftablifhed upon this point. On proof that it was a ufage among Tanners to work in and out for three watches, it was lately decided in this Court, that, for that purpofe, the leffee of a Tan-yard was entitled to hold over the poffeffion, althogh his agreement was for a fixed and determinate time. So, in the cafe of a Feme Couvert, who could not at common law convey her maiden lands but by Fine, yet, as it had been the conftant ufage of the province to make fuch
conveyances by deeds of bargin and fale, the ufage was recognized by the Court, and the adjudged to the obligatory. Lloyd's Leʃʃon verʃus Taylor ant. 17.–In the cafe at bar, it is proved to have been the general ufage, not to value the party wall till the fecond houfe is built; and, even then, it if frequently delayed for feveral years ; fo that it muft neceffarily be inferred, that the ufage extends to make the purchafor of the fecond houfe, as liable as the perfon who built it, for the moiety of the partition ; of which, indeed, all the pofitive evidence has been given, that the nature of the cafe affords.
For the Deƒendant two points were made.–1ft. That the action could not be maintained at common law. And 2d. That it was not authorized by the Act of Affembly.
1. On the firʃt point, it was obferved, that bona ƒide purchafors for a valuable confideration are highly favored in law ; 2. Black. Com. 247. and of thefe, purchafors under an execution are the moft efteemed; infomuch that if the execution is afterwards fet afide for irregularity, they fhall neverthelefs hold the lands. 2 Bac. Abr. 370. 1State Laws 52. Purfuing this regard for honeft purchafors, if a Truftee fells truths lands for a valuable confideration, without giving notice of the truft, the law declares that the buyer fhall hold the lands difcharged. Caʃ. temp. Tath 260. and even if a man purchafor for a valuable confideration with notice of a fettlement, from one who bought without notice, he fhall fhelter himfelf under the firft purchafor. 1 Atk. 571. The Defendant is a bona ƒide purchafor under an execution, for a valuable confideration, without notice of the Plaintiff's demand : He is, therefore, in all refpects within the benefit of thefe authorities, and ought not to be made refponfible for the negligence of the Plaintiff, who had it in his power to recover from the original owner of the houfe, who knew of the fales, who never gave notice of his claim at the times of fale and who has fuffered fo long a period to elapfe before he made a demand, as to juftify a prefumption, that, whatever was due, has been paid. Cowp 109. It, indeed, a man will ftand bie at the time of fale, and not difclofe his lien, the law deems him guilty of a fraud, and poftpones his right to that of the purchafor. 2 Atk. 83. Gilb.Eq. Rep. 85. 1 Veʃ. 94. In the prefent cafe particularly, it would be highly dangerous, if the rule were otherwife for there is no record, as in the cafes of mortgages and judgments, to which a man can refer in order to afcertain the incumberances that will thus affect his purchafe ; nor is there any means by which a remote purchafor can fhew that the lien had been difcharged by his predeceffors.
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 houfe, nor affirmed to pay the money ; and, when the Plaintiff would avail himfelf of a ufage, it is incumbent upon him to make ftrict proct of its exiftency ; which he has failed in doing upon this
1788.
occafion.–whatever might be the effect of the teftimony, as between Ingles and Waters, the original builders of the houfes, to whom alone it has any relation.
2. Nor, on the ʃecond point, is the action authorized by the Act of Affembly. The words relating to this controverfy are , that
“ the firft builder fhall be reimburfed one moiety of the charge of
“ the party wall, or for fo much as the next builder fhall have occa-
"fion to make ufe of, before he ƒhall in any wiƒe uʃe or break in (illegible text)
“ ʃaid wall, &c.”— Here then is the remedy which by operation of law is given to the firft builder ; and when a ftatute gives a new remedy the party muft 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 reimburfement of the moiety of his expences beƒore Waters could uʃe the wall ; and if he has neglected to do fo, although it would perhaps be unjuft in Waters himfelf to refufe the payment, yet there is no legal or moral obligation that can bind a fubfequent purchafor ; for, on the fpirit and words of the Act, he had a right to prefume that the claim was already fatisfited; or, if he had known that it was not, he might have infifted on fome abatement in the price. The firft builder, indeed, could have no greater lien than the carpenter, or mafon, who built the houfe. In England, where real eftate is not liable for the payment of fingle contract debts, if a houfe defcends to the heir he is not bound to pay the carpenter that repaired it, who can only refort the perfonal eftate for fatisfaction. 1 Veʃ. 155. So here ; as the Plaintiff allowed the fecond builder to ufe the party wall beƒore he exacted the contribution which the law allows ; it became a matter of mere perfonal confidence ; and, however the perfon of Waters might be liable, his houfe and lot were effectually difcharged.
For the Plaintiƒƒ, in reply. As the Defendant has not relied on the ftatute of limitations in his plea, no argument from the lapfe of time can apply. Nor is it any reafon that the Plaintiff fhould loft his claim, becaufe the Sheriff omitted, or neglected, to make it known at the time of fale ; and there is no ground to prefume (nor ought fraud ever to be prefumed,2 Atk 83.) that the Plaintiff knew when the fale was . Incumberances in law or equity are not altered or affected by a Sheriff's fale . The Sheriff has no authority to bind a ftranger to the procefs under which he fells: and this diftinguifhes the cafe from that of the Truftee, whofe acts are binding upon the ceʃtuy que truʃt It is clear that a mortgage was not mentioned at the fale ; for, the Sheriff only fells the right which the Defendant had in the premiffes. The Defendant ought to have enquired whether the Plaintiff's claim eas fatisfied ; and the law does not help thofe who fleep, but only thofe who are active and vigilant.
The right given by the Act of Affembly to be paid beƒore is a new and extraordinary one ; for, the common law admits of not compenfation untill value received. There is not any remedy, however, pointed out for the recover of this new right ; and it will
hardly be pretended that an action would lie before the fecond houfe was begun ; until which time it is impoffible to fay how much of the wall is wanted, nor, confequently, how much contribution is due. But the Plaintiff does not infift on thiss new right ; he does not afk for payment before, but long after, his wall has been ufed ; and, furely, the Legiflature that gave a right in the former cafe, muft have admitted a much ftronger right to recover in the latter ; for, he who ufes another's property is liable, at all times, to pay for it. This, indeed, is a principle of natural juftice paramount to all Acts of Affembly ; and, as every continuance of a nuifance is a culpable as the original offence, the Defendant's continuing to occupy and ufe the Plaintiff's wall, is, in itfelf, fufficient to make him liable to the prefent demand.
SHIPPEN, Preʃident. The principal point in this cafe is, whether under our Act of Affembly, the moiety of the coft of a party wall, is a perfonal charge againft the builder of the fecond houfe, or fuch a lien upon the houfe itfelf, as fhall render it liable to the reimburfement of the firft builder, into whofe hands foever it may come?
Lien is a technical term, that means a charge upon lands, running with them, and incumbering them in every change of ownerfhip ; as mortgages, judgments, ground rents &c. There are fome liens, alfo, created by ftatute; as, in the very act in queftion, where a perpetual lien is clearly given to the firft builder of a party wall, for fo much of his neighbour's land, as one half of the breadth of the wall fhall cover. It is enacted, at the fame time, that the fecond builder, having the ufe of one half of the wall, fhall reimburfe one half of the expence of building it ; which is a reafonable and ufeful regulation, calculated to prevent animofities and difputes.
Whether, however, a purchafor of the fecond houfe, after it is built, fhall be liable to the claim of the firft builder, who has neglected, or declined, to infift upon the payment, before his wall was broken into, has been made a queftion, but, I think, it is eafily refolved by attending to the expreffion and manifeft intent of the law.
The Act of Affembly declares that the firft builder fhall be reimburfed; but it alfo prefcribes the time of reimburfement to be, beƒore the ʃecond builder ƒhall in any wiʃe uʃe, or break into the wall. This, it has been obferved, is an indefinite right of payment ; for, until the fecond houfe is begun, it cannot always be afcertained 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 confidering, that if aman makes a breach in my wall, he is a trefpaffer, and, generally fpeaking, I have a competent remedy for the injury which he has done. The Act of Affembly, however, provides, that any perfon whofe lot joins upon any houfe, may lawfully ufe and break into
1788.
the wall, if he has firft paid me a moietyof the coft of building it. Now, although no action will lie to recover this moiety until the fecond houfe is actually begun, yet, if it is begun and a breach made in the wall before the payment, the builder is confidered as a trefpaffer, notwithftanding half of the wall is raifed upon his ground, and in an action of trefpafs againft him, he could not juftify under this Act. Or, perhaps, the Plaintiff might wave the trefpafs and bring an action on the implied affumption for money paid for the Defendant's ufe.
The difficulty, indeed, of afcertaining how much the firft builder is entitled to receive, until the fecond houfe is erected, has given rife to the ufage that has been proved ; but this extends no further than to fhew, that the valuation of the party wall is never made before the fecond houfe is built, and, often, not until feveral years afterwards. The ufage, to this effect, may have a reafonable foundation ; but to reach the prefent cafe the evidence of a ufage, if at all admiffiable, ought to have fhewn, that, for a long feries of years, the owner of the fecond houfe, however remote from the builder, was held liable to pay the moiety of the charge o the party wall. This has not, I think, been fatisfactorily done.
The Plaintiff then contends for his claim upon another principle, that, as the Defendant has the ufe and occupation of the wall, he ought to be proportionally liable for the coft of building it ; and this would certainly be a ftrong argument, if a lien actually exifted. But, if the moiety of a party wall is only a perfonal charge againft the fecond builder, there is no more reafon that a fubfequent purchafor fhould be refponfible for that, than for the payment of the brickmaker or mafon. Confidering it, therefore, as a lien, it will bind the eftate, like a mortgage or judgment ; but, confidering it as a perfonal charge, the Plaintiff, upon an implied contract (as well as the tradefmen who were employed, upon an exprefs one) muft refort to Waters for payment and fatisfaction of his demand.
This, therefore, brings it to the original queftion, whether,in this cafe, a lien exifts or not? And the court are clearly of opinion that it does not. Why, indeed, fhould the Legiflature have directed the payment to be made beƒore the breach, if they meant that the fecond houfe fhould be forever charged with the coft of the party wall, whoever might be the owner? In almoft every inftance of a lien there is fome record by which it is announced to the public, and to which every man may have accefs. But here, it is a dormant tranfaction ; the claim is not known when the fale takes place, fo that the purchafor lofes the opportunity of indemnifying himfelf; and, even it if had been fatisfied by the firft builder , or the intermediate purchafor, that is a fact which it cannot be in the Defendant's power at his time to eftablifh.
Verdict for the Defendant.