Scottish-American Mortg. Co., v. Russell
| Decision Date | 02 September 1905 |
| Citation | 20 S.D. 42,104 N.W. 607 |
| Parties | SCOTTISH-AMERICAN MORTGAGE COMPANY, LIMITED, Plaintiff and appellant, v. F. IDA RUSSELL, Defendant and respondent. |
| Court | South Dakota Supreme Court |
F. IDA RUSSELL, Defendant and respondent. South Dakota Supreme Court Appeal from Circuit Court, Minnehaha County, SD Hon. Joseph W. Jones, Judge Affirmed Bailey & Voorhees Attorneys for appellant. Boyce & Warren Attorneys for respondent. Opinion filed, Sept. 2, 1905
This is an action for an injunction to enforce payment for a party wall, and was tried upon an agreed statement of facts. From a judgment in favor of the defendant, and order denying a new trial, the plaintiff has appealed.
The plaintiff is the owner of lot 18, and the defendant of the adjoining lot 17, in a block in the city of Sioux Falls. In June, 1889, Andrew E. Phillips was the owner of hit 18, and Patrick Hare was the owner of lot 17, and they entered into a party-wall contract; but this contract was not recorded until after Hare had conveyed lot 17 to the grantor of the defendant. Soon after the execution of the party-wall contract Phillips commenced the construction of a building known as the “Phillips Block” on lot 18, and completed the same prior to the 5th day of July, 1892. In the construction of this block the party wall was located in accordance with the party-wall contract; the center line of the wall coinciding with the dividing line between the two fats. On July 5, 1892, Hare executed and delivered a deed to let 7 to the person through whom the defendant and respondent now claims title. This deed was filed for record on said 5th day of July at 10 o'clock, a, m., and the party-wall contract was filed for record on the same' day at 3:45 o'clock., p. m. The purchaser from Hare had no notice of the terms of the party-wall contract, other than such notice as the existence of the building and of the party wall would give him. The party-wall contract contains the billowing stipulations:
“Now it is mutually agreed by and between the said parties, for themselves, their heirs and assigns, that, if the said Phillips shall build the party wall between the said lots, he shall build the same of brick or stone, and not less than i6 inches and not more than feet in thickness, and extending back from Main avenue not less than 75 feet in depth, and shall build it on the dividing line between said lots. And, it is further mutually agreed by and between the said parties that whenever the said Hare shall build on said lot 17 he shall contribute and pay to said Phillips one-half of the cost of said wall, and then shall have the right to use said wall in common with said Phillips. And it is further mutually agreed by and between said parties that, if the said Hare shall first build said wall, he shall build it in the same manner before-specified, and, upon payment to him by said Phillips of one-half the cost thereof, said wall shall be owned and used in common. … The right to build and the obligation to use and pay for one-half the cost thereof, as above specified, shall be mutual and binding upon said parties, both as to the wall that may first be built and to any future extension thereof. And the said parties hereby convey to each other, their heirs and assigns, reciprocally, such interest in the land covered or to be covered by said party wall as may be necessary to carry out the terms of this agreement.
Witness our hands and seals this 22nd day of June.”
It is contended by the appellant that notwithstanding the defendant’s grantor, through whom she claims, had no actual notice and no constructive notice by reason of the recording of the contract, still the erection of the party wall one foot on lot 17 constituted constructive notice of the existence of the contract, which was binding upon her grantor and those claiming under him, by reason of the following clause in the...
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