Feder v. Solomon

• Decision Date: 17 November 1925
• Citation: 131 A. 290
• Parties: FEDER et al. v. SOLOMON et al.
• Court: New Jersey Supreme Court

131 A. 290

FEDER et al.

v. SOLOMON et al.

Supreme Court of New Jersey.

Nov. 17, 1925.

Action by Morris Feder and others against Sam Solomon and another. Judgment for defendants.

Tried by NEWMAN, Circuit Court Judge, without a jury.

Jacob I. Jaffe and Weinberger & Weinberger, all of Passaic, for plaintiffs.

Feder & Rinzler, of Passaic, for defendants.

Findings of Fact and Conclusions of Law.

NEWMAN, J. This case was tried before the court without a jury. I find the facts to be as follows:

On the 6th day of April, 1923, the defendants entered into a contract with the plaintiffs whereby the defendants agreed to convey to the plaintiffs certain lands and premises in the city of Passaic, known and designated as No. 220 and 220 1/2 Monroe street, being a plot of ground having a frontage of 37 1/2 feet, more or less, on Monroe street and a depth of 100 feet, more or less. The purchase price was the sum of $40,000. The contract further provided that the premises were to be conveyed free of all incumbrances with the exception of two mortgages, the first in the sum of $10,000 and the second in the sum of $8,000. The plaintiffs paid $1,500 deposit and were to pay the difference in cash on or before May 11, 1923, the date fixed for the closing of title.

After the signing of the contract, the plaintiffs caused a search of the premises to be made, for which they incurred an expense of $150 and also caused a survey to be made at an expense of $50, both of which charges I find to be reasonable.

I further find that the two sides of the brick building erected on the premises were part of a wall used in common by the owners of the premises about to be conveyed and the adjoining owners on each side, and that the lines of the premises in question on each side run through the center of this wall; the situation thus presented being what is commonly called a "party wall."

I find that the district in which these premises are located is a business district; that the buildings are closely built; that the building on the premises in question contains stores; and that there is no agreement between the respective adjoining owners and the plaintiffs or their predecessors in title as to the maintenance or repair of these walls.

The plaintiff's allege that these party walls were an incumbrance on the property, and for that reason they declined to accept the deed and pay the balance of the purchase price and have instituted this suit for a recovery of the initial payment of $1,500 together with the reasonable expenses of the search and survey thus incurred. There is no dispute as to the essential facts, but the parties have joined issue on this interesting question of law.

No case in this state has been called to my attention where the question has been flatly decided, and the only case approaching a solution of the point involved is the opinion of the Court of Errors and Appeals in this state in Burns v. Thomas, 81 N. J. Eq. 168, 86 A. 382. In that case complainant had agreed to buy a lot in Jersey City 25 feet in width together with a four-story brick apartment dwelling situated thereon. The deed as delivered described the westerly line of the lot as running through the center of a party wall standing partly on the premises thereby conveyed and partly on the premises next adjoining thereto. Complainant sought to have the deed reformed by including the whole of such party wall on such westerly side, on the theory that the contract provided for a four-story building but that the description in the deed as given did not include a complete building. The court said (81 N. J. Eq. 171, 86 A. 383):

"The case is the ordinary case that occurs in our compactly built cities, of a building with party walls. A building is none the less a complete building because one of its side walls requires, or is strengthened by, a supporting wall of an adjoining building. The right of mutual easements in such cases is well recognized, and each building is regarded as complete in itself. The language used by Chief Baron Pollock in Richards v. Ross, 9 Exch. 218 by the New York Court of Appeals in Rogers v. Sinsheimer, 50 N. Y. 646, and the Supreme Court of Massachusetts in Carlton v. Blake, 152 Mass. 176, 25 N. E. 83, 23 Am. St. Rep. 818, sufficiently vindicates this definition of a building."

The better opinion seems to be that a wall standing equally on both lots, and held in common by the adjoining proprietors, is not an incumbrance, but a valuable appurtenant which passes with the title to the property. Maupin on Marketable Title to Real Estate, p. 326 (citing cases).

In Hendricks v. Stark, 37 N. Y. 106, 93 Am. Dec. 549, where there was no covenant to maintain and rebuild the wall, the Court of Appeals of that state said:

"A part...