Rawson v. Bell

• Decision Date: 31 July 1872
• Citation: 46 Ga. 19
• Parties: E. E. RAWSON, plaintiff in error. v. MARCUS A. BELL, defendant in error.
• Court: Georgia Supreme Court

46 Ga. 19

E. E. RAWSON, plaintiff in error. v. MARCUS A. BELL, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1872.)

Practice in Supreme Court. Exception to charge. Party wall. Statute of Frauds. Part performance. Easement. Reasonable time. Before Judge Hopkins. Fulton Superior Court. October Term, 1871.

For the facts of this case, see the decision.

D. F. & W. R. Hammond, for plaintiff in error, submitted the following brief:

We contend that the Court should have charged the jury that, "if they should find that Rawson, at the time he sold to Angier, gave him notice of his promise to pay for half the wall when he used it, and also notified him that he never expected to pay for the wall, as he would never use it, that then *Rawson would not be liable and it was their duty to find for defendant;" and "if they should find that Bell sold and conveyed his lot, together with the appurtenances, before the bringing of this suit, that then Bell would have no right of action, and it would be their duty to find for defendant."

I. A parol agreement to pay for half a party wall when used, binds the land, where the purchaser took with notice: Wickersham v. Orr, 9th Iowa, 253. A covenant to pay for half a party wall when used, "binds, and is a charge upon the land: " Wash. Eas. and Serv., side p. 459; 1st Bradford's N. Y. Rep., p. 52. A claim for contribution for building a party wall, is a lien upon the land: Campbell v. Mesier, 6th Johns. Ch. Rep., 23. This parol agreement has the same force and effect as a covenant, since it has been performed on one side, and therefore may be treated as a covenant: see Sheppard's Touch. A covenant runs with the land "when there is a privity of estate between the covenanting parties, and the covenant is connected with and concerns the subject-matter of the privity of the estate between them: " Morse v. Aldrich, 19th Pick., 449; Hurd v. Curtis, Ibid., 459; Sheppard's Touch., side p. 176, 316. In this case, the privity of estate between Rawson and Bell was in the eight inches of Rawson's land on which the wall stood. Rawson owned the fee and Bell had an easement in it for the support of his wall. The agreement wall "to pay when he used the wall, " and was directly connected with and concerning the subject-matter of the privity of estate between Bell and Rawson.

II. Bell passed his right of action by his deed to Angier. The effect of the agreement was that the entire wall remained the property of Bell, until used and paid for by Rawson. By the deed the wall passed, and with it the right to be paid for it: Burlock v. Peck, 2d Dun., 90; Wash. Eas. and Serv., side p. 464; Clinton's Dig. N. Y. Rep., vol. 3, p. 2453; 1st Bradford's N. Y. Rep., p. 57. Improvements placed uponthe land of another may, by agreement, remain the property of him who placed them there: 1st Hill, 176; 4th Mass., *514; 8th Mete, 34; 5th Pick., 487. This principle is recognized by the laws in reference to the city of Savannah: Code, sec. 4792.

III. This agreement was by parol, and the performance, on the part of Bell, was not sufficient to take the case out of the Statute of Frauds: 3d Pars, on Cont., p. 60.

L. E. Bleckley, for defendant, submitted the following brief:

The contract was personal between these parties. Bell performed his part fully, and gave credit to Rawson, and trusted to Rawson's personal responsibility. The latter contemplated building himself, and Bell treated with him on that understanding. Neither party stipulated for or against his assigns. The subsequent conveyance to Angier neither divested Bell of his right nor relieved Rawson of his obligation: 28th Ind. R., 37; 17th Pick., 538; 24th Wis., 461.

Rawson had already planned the building in some respects at least, that he was going to erect. He virtually agreed to use a portion of the wall, and he expressly promised to pay when he used it. As no time was specified, he must be understood as intending to build in a reasonable time: 11th Ga. R., 154.

Instead of acting as he had induced Bell to believe he was going to act, he changed his purpose and sold out to Angier. He thus put it out of his power to build at all, and that was a virtual breach of his undertaking: Langdell's Select Cases, 917, 947; 12th Ga. R., 150; 15th Mees & W., 189; 16th Mass., 161.

WARNER, Chief Justice.

The plaintiff brought his action against the defendant to recover the one-half of the cost or value of the erection of a party-wall under an alleged agreement between the parties, who were the owners of adjoining city lots in the city of Atlanta.

On the trial of the case the jury, under the charge *of the Court, found a verdict for the plaintiff for the sum of $336, with interest and costs. The case comes before this Court on exception to the entire charge of the Court to the jury, without assigning error to any particular part thereof. As there was no motion made to dismiss on that ground, we will consider the charge of the Court as it is set forth in the record, without intending to indorse or sanction such a practice in this Court. The following facts were disclosed by the evidence on the trial:

Bell, the plaintiff, owned the city lot described in the declaration, and Rawson, the defendant, owned the adjoining lot. Bell desired to build, and proposed to Rawson to erect the dividing wall between their two lots so as to place one-half thereof on Rawson's land. Rawson agreed to it, at the same time agreeing to pay for one-half of as much of the wall as he used in building himself when he built, and also specifying that he would not want to erect as high a house as Bell contemplated, but would only want to build a two-story house with out any basement or cellar. This agreement was by parol. Bell proceeded to build, and placed the dividing wall half on his own and half on Rawson's land, according to the agreement. The wall was sixty feet long and sixteen inches thick, eight inches of it being on Rawson's land. After its completion, to-wit: on the 20th day of December, 1866, Bell sold his lot, together with the appurtenances, executing a regular warrantee deed for the same to N. L. Angier. Afterward, to wit: on the 10th day of January, 1867, Rawson sold his lot to the same Angier, together with the appurtenances,...