Joy v. Boston Penny Sav. Bank

• Decision Date: 04 April 1874
• Citation: 115 Mass. 60
• Parties: John D. W. Joy v. Boston Penny Savings Bank
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

115 Mass. 60

John D. W. Joy v. Boston Penny Savings Bank

Supreme Court of Massachusetts

April 4, 1874

Suffolk. Contract to recover one half the cost of a division wall used by the defendant.

In the Superior Court the following facts were agreed:

"The plaintiff is the owner of the estate on Washington Street, in Boston, described in the deed of Amos A. Lawrence to him dated April 11, 1866, and recorded with Suffolk deeds, lib 875, folio 187. Lawrence derived his title to said estate from Gideon Currier, by deed, dated August 13, 1864, and recorded with Suffolk deeds, lib. 847, folio 63. The defendant corporation is the owner of the adjoining estate which is described in the deed of Job A. Turner and others to it, dated July 8, 1867, and recorded with Suffolk deeds, lib. 904, folio 172. Turner and others acquired their title to the estate under the deed from Hiram Johnson, dated November 21, 1866, and recorded with Suffolk deeds, lib. 889, folio 241.

"It is also agreed, if the evidence is admissible and competent against any objections and exceptions which the defendant could take thereto, that before Currier had acquired by deed his title to the land now owned by the plaintiff, but after he had bargained therefor and taken a bond for the conveyance thereof to him upon the performance by him of the conditions of the bond, Johnson signed and delivered to Currier, a paper writing, dated November 7, 1857, whereby Johnson, in consideration of one dollar paid by Currier, covenanted and agreed to and with Currier, his heirs and assigns, 'that the said Currier may erect or cause to be erected one half the stone and brick wall which he is about to build on the dividing line between the estate belonging to said Hiram Johnson, . . . . and estate of said Currier, . . . . and that I, the said Hiram Johnson, will my heirs and assigns pay or cause to be paid to said Currier, his heirs or assigns, one half the cost of erecting said wall, whenever, and as soon as I, my heirs, or assigns, shall use the same.' This instrument was not under seal, and it was not acknowledged, but it was recorded with Suffolk deeds, lib. 880, folio 58, on June 9, 1866. The deeds under which the plaintiff derived his title made no mention of the division wall. The deeds under which the defendant derived its title, described the estate as bounded by a line running through the middle of the brick partition wall, 'which wall was built by said Currier, one half on the granted land, and one half on his land according to an agreement recorded with Suffolk deeds, lib. 880, folio 58.' Currier erected a building on the land now owned by the plaintiff, placing one wall thereof, one half on this land and one half on the land now owned by the defendant, before he conveyed his estate to Lawrence as aforesaid. The defendant, after its purchase of its estate as aforesaid, erected a building thereon, and made use of the wall built by Currier partly on each of the two estates as aforesaid."

On the foregoing facts ...