Gibson v. Holden

• Decision Date: 14 November 1885
• Citation: 115 Ill. 199,3 N.E. 282
• Parties: GIBSON v. HOLDEN.
• Court: Illinois Supreme Court

115 Ill. 199

3 N.E. 282

GIBSON

v.HOLDEN.¹

Supreme Court of Illinois.

Filed November 14, 1885.

Appeal from First district.

Charles C. P. Holden and Thomas R. Armstrong, being the owners of adjoining lots in the city of Chicago, on the third day of July, 1872, executed a party-wall agreement under their respective hands and seals, as follows:

‘This agreement, made this third (3d) day of July, A. D. 1872, between Charles C. P. Holden and Thomas R. Armstrong, of the city of Chicago, in Cook county, in the state of Illinois, witnesseth, that whereas said Holden is the owner of lot twelve, (12,) and the said Armstrong is the owner of the odjoining lot eleven, (11,) in E. K. Rogers' subdivision of lots one (1) and two, (2,) in block five, (5,) in Duncan's addition to Chicago, and block one, (1,) in the Canal Trustees' subdivision of the west half, and the west half of the north-east quarter, of section seventeen (17,) in township thirty-nine (39) north, range fourteen (14) east of the third (3d) principal meridian, and said Holden is about to erect a building upon his property, and said parties are anxious to have a party-wall on the line of and resting, one-half thereof, on the property of each of them, they therefore agree that said Holden may, in the erection of the improvements on his property, place one-half in width of the wall of his building upon the property of said Armstrong; that said wall shall be suitable for a party-wall, and shall continue to be a party-wall forever.

‘And the said Holden and Armstrong agree to keep, maintain, repair, and rebuild said wall, whenever necessary, at the equal joint expense of each. Said wall, when first built, is to beilt and paid for by said Holden alone, and whenever said Armstrong uses all or any part of said party-wall he shall first pay to said Holden the cost of one-half of the part of the said wall. Such cost to be computed upon the basis of $15 per M. for brick; $20 per cord for rubble-stone; $27 per cord for second course dimension stone; and $32 per cord for lower-footing dimension stone, and eighty-eight cents per foot for coping laid in said wall. The quantity of each kind of material in the half of the said wall shall be fixed upon by the certificate of the architect and builder of said Holden, if he can produce the same; if not, then such quantities may be fixed upon by arbitrators chosen by each party; but in all cases said Armstrong shall not use said wall or any part thereof until he has actually paid the said Holden for the one-half thereof.

‘The provisions of this agreement shall be deemed and taken to be covenants running with the land, and shall be binding upon the executors, heirs, devisees, and assigns of said parties, and shall bind all persons having at any time any interest or estate in said land.’

And this agreement was duly recorded in the recorder's office of Cook county, on July 17, 1872.

After the execution of the agreement, Holden built and paid for the wall therein provided for. Sometime subsequently, he conveyed his lot by two deeds of trust to William H. King, as trustee, and King thereafter conveyed the lot to Emeretta A. Gibson, who now owns it. The title to Armstrong's lot became vested by mesne conveyances in John H. Kedzie. Prior to the date of the filing of the bill therein, Kedzie, desiring to build on his lot and to use a portion of the party-wall, filed a bill in the circuit court, making Holden and Mrs. Gibson parties defendant thereto, and setting forth the fact of his purchase of the Armstrong lot and the party-wall agreement, and that Holden and Mrs. Gibson both claimed the money due under the party-wall agreement, and that he was in doubt as to which of them was rightfully entitled thereto, and asking that they be required to interplead and litigate between themselves as to which of them should receive the same.

Answers and replications were duly filed, and on a preliminary hearing the value of the portion of the wall Kedzie proposed to use was found to be $1,378.28, which sum Kedzie deposited with the clerk of the court. This money was claimed by Holden, who remains the owner of the-party wall agreement, and who has kept the one-half of the wall resting on Kedzie's lot insured continuously for his benefit, and by Mrs. Gibson as the owner of the Holden lot.

On the final hearing the court found that Mrs. Gibson was entitled to the money, and a decree was entered directing the payment thereof to her by the clerk of the court, from which decree Holden prosecuted his appeal to the appellate court of the First district. That court, on hearing, reversed the decree of the circuit court, and remanded the cause, with directions to the circuit court to enter a decree directing the payment to Holden of the money paid into court by Kedzie. See 16 Brad. 411. This appeal is from that judgment. The controversy is between Holden and Gibson alone; Kedzie having admitted his liability to pay the one part or the other, and, in conformity with the order of court, paid his money into court. Errors are assigned presenting the question discussed in the poinion.King & Packard

, for appellant.

Charles F. White and M. L. Wheeler, for appellee.

SCHOLFIELD, J.

The language of this agreement very clearly shows that this wall was built as a party-wall, and to remain such. It says, after the recital showing the intention of Holden to build the wall, and the mutual desires of the parties that it shall be a party-wall on the line between their lots, one-half of the wall resting on the ground of each: ‘They therefore agree that said Holden may, in the erection of the improvements on his property, place one-half in width of the wall of his building upon the property of said Armstrong; that said wall shall be suitable for a party-wall, and shall continue to be a party-wall forever.’ The word ‘continue’ manifestly means from the time of the building of the wall, for there is no other period indicated to which it can have reference. This view is confirmed by the further language: ‘And the said Holden and Armstrong agree to kepp, maintain, repair, and rebuild said wall.’ When? The language of the agreement, continuing, answers, ‘Whenever necessary;’ that is to say, at any time from the building of the wall. And this is to be done ‘at the equal joint expense of each.’ Had it been intended that the ownership of the wall should be in Holden until such time as Armstrong should pay him for one-half, it would have been the duty of Holden alone, until that time, to have kept, maintained, repaired, and rebuilt the wall; and we are bound to presume that, had such been the intention, language expressing that the wall should be a party wall when or upon condition that Armstrong should pay for one-half, and that thereafter the wall should be kept, maintained, reparied, and rebuilt at the equal joint expense of each, would have been used instead of that which was used. The sharing of the burdens of repair, rebuilding, etc., jointly, is an obvious result of a joint title or ownership, and could never be presumed, in the absence of language admitting of no other reasonable construction, as intended to apply to property whereof the title or ownership was in but one of the parties.

While, however, it is clear that the title or ownership of the wall is joint the moment it is built, and that it so continues, it is also clear that in order to secure Holden for his advances on the joint account in building the wall, the sole possession of the wall shall be in Holden alone; or, in other words, that Armstrong shall not be allowed to use the wall until he shall repay those advances. Armstrong has title to one-half of the wall, but Holden retains the possession of the whole as a security for his debt. There is no language used applicable to a sale. When Armstrong desires to use the wall, he is not to pay for one -half its value, or a sum to be agreed upon as the price of one-half of the wall, as we should expect in case of a sale; he is simply ‘to first pay to said Holden the cost of one-half part of said wall.’ Holden's necessities for the immediate use of the wall are such that he is willing and consents to loan, in effect, to Armstrong so much money for that indefinite time. Cases, therefore, where parties are, by the deed under which they take title, given one-half of a wall as a party-wall, when or upon condition of making payment, and cases in which the owner of one lot has licensed the owner of the adjoining lot to build a wall for himself, resting one-half of it on each lot and reserving the privilege of thereafter purchasing one-half the wall as a party-wall, are not analogous.

In all such cases the title to the whole wall may be regarded as appurtenant to the lot of the builder, and so passing by every conveyance of it, until the severance of the half by the payment of the purchase money. The sale of the half of the wall does not occur, nor the title to it pass, in those cases, until the payment is made, and so, necessarily, it is constructively a sale by the assignee of so much of the wall. His right to the purchase money is not because he is the assignee of a covenant running with the land, but because he is the vendor of so much of the wall. Such, in effect, as we understand them, are Weyman's Ex'rs v. Ringold, 1 Bradf. Surr. 41; Maine v. Cumston, 98 Mass. 317;Burlock v. Peck, 2 Duer, 90; and Keteltas v. Penfold, 4 E. D. Smith, 122, cited and relied upon by counsel for appellant. And without pausing here to analyze carefully each of those cases, we content ourselves by saying that if effect of the decisions, or either of effect of the decisions, of either of them, in this respect, and it shall be found that it has been ruled holding that the right to receive payment for the construction of so much of the party-wall as rests upon the lot of another passes as appurtenant to the adjoining lot of the builder by his conveyance of that lot, then, for the...