Garmire v. Willy

• Decision Date: 01 March 1893
• Citation: 54 N.W. 562,36 Neb. 340
• Parties: GARMIRE v. WILLY.
• Court: Nebraska Supreme Court

36 Neb. 340

54 N.W. 562

GARMIRE

v.WILLY.

Supreme Court of Nebraska.

March 1, 1893.

Syllabus by the Court.

1. A county court has jurisdiction of an action brought upon a party-wall agreement to recover one half the expense of building a party wall, where the amount sought to be recovered does not exceed the jurisdictional limit of such court.

2. Where a party purchases a lot on which there is a party wall built by the owner of the adjoining lot, with notice, either actual or constructive, of a contract between his grantor and such adjoining lot owner that the grantor will pay one half the costs of constructing the wall whenever he shall use it, the agreement further stipulating that the covenants therein shall extend to and be binding upon each party, his heirs, administrators, and assigns, such purchaser is liable for the amount agreed to be paid by the grantor in case he makes use of the wall.

3. The proper registration of a party-wall agreement is constructive notice to all purchasers of the real estate affected by the agreement, and such notice is as effectual and binding as actual notice.

4. Where a purchaser of property pays the grantor the consideration therefor after he has received actual or constructive notice of a prior right or equity, he is not entitled to the protection which the law affords an innocent purchaser for value.

5. Held, that the proof supports the verdict.

Error to district court, Thayer county; Morris, Judge.

Action by John A. Willy against John D. Garmire to recover one half the cost of a party wall, and for damages. Plaintiff had judgment in the county court, and defendant appealed to the district court, where plaintiff again had judgment, and defendant brings error. Affirmed.O. H. Scott and Hambel & Heasty, for plaintiff in error.

Manford Savage, M. H. Weiss, and C. L. Richards, for defendant in error.

NORVAL, J.

This was an action brought in the county court by John A. Willy against John D. Garmire to recover one half of the cost of a party wall constructed by Willy, under a written contract with one E. M. Correll, defendant's grantor, and for damages alleged to have been sustained by reason of the defendant carelessly and negligently cutting into and injuring said party wall and plaintiff's building. From a judgment in favor of the plaintiff in the county court, the defendant appealed to the district court, where the cause was tried to a jury, who, under the instructions of the court, found for the plaintiff, assessing his damages at the sum of $332.83, being one half of the value and cost of the party wall. In June, 1886, John A. Willy and E. M. Correll entered into a written contract by the terms of which the former was authorized to construct a party wall upon the dividing line between their adjacent lots in the town of Hebron, one half of the wall to rest upon Correll's lot, and the other half on Willy's lot. It was expressly stipulated in the contract that, when so built, Correll, upon the payment of one half of the costs of the erection of said wall, should have the right to use the same as a party wall for any building he might thereafter construct on his lot. The contract also contained this provision: “It is mutually agreed that all the covenants and agreements herein contained shall extend to and be obligatory upon the heirs, administrators, and assigns of the respective parties.” The agreement, though signed by the parties in June, 1886, was not acknowledged by them, so as to authorize it to be recorded, until September 21, 1888. It was duly filed for record on the day last above written, at 9:20 A. M. Subsequent to the making of said contract, but prior to September, 1888, Willy erected a brick building, with a stone foundation thereunder, upon his lot, and in so doing he constructed a party wall in accordance with said agreement, resting one half thereof upon his lot, and the other half upon the one owned by Correll. After the party wall was erected, Correll sold and conveyed his lot to John D. Garmire, who erected a building thereon, and made use of the party wall as one of the walls for his building. Neither Correll nor Garmire having paid any portion of the cost of the party wall, this action was brought.

The first objection urged against the judgment is that the county court had no jurisdiction of the subject-matter, hence the districtcourt acquired none by the appeal. The case of Brondberg v. Babbott, 14 Neb. 517, 16 N. W. Rep. 845, is cited to sustain the proposition. In that case it was held that the district court acquires no jurisdiction of a cause on appeal from the county court if the latter had no jurisdiction of the subject-matter. We concede the soundness of the doctrine therein announced, but it has no application to the case at bar, unless the proposition contended for by the defendant be true, namely, that the county court had no jurisdiction to try and determine the case. Whether it had jurisdiction of the second and third causes of action alleged in the petition, which relate to damages to the party wall and plaintiff's building, it is not necessary to stop to inquire, inasmuch as no recovery was had upon either of these counts of the petition. The only question submitted to the jury to pass upon had reference to the value or cost of one half of the party wall.

Has a county court jurisdiction in an action brought upon a party-wall agreement to recover a portion of the cost of building a party wall? The answer must be in the affirmative. By section 16 of article 6 of the state constitution it is provided that “county courts shall be courts...