Sharp v. Cheatham

• Decision Date: 31 October 1885
• Citation: 88 Mo. 498
• Parties: SHARP v. CHEATHAM, Appellant.
• Court: Missouri Supreme Court

88 Mo. 498

SHARP

v.CHEATHAM, Appellant.

Supreme Court of Missouri.

October Term, 1885.

Appeal from Johnson Circuit Court.--HON. NOAH M. GIVAN, Judge.

REVERSED.

O. L. Houts for appellant.

(1) The contract sued on was a personal covenant; did not run with the land or create a privity of estate between the original parties or their grantees, the parties to this action. Wash. on Real Prop. [3 Ed.] top pp. 261, 262, 263, side pages 15, 16, and cases cited; Cole v. Hughes, 54 N. Y. 444. (2) The original parties to the contract sued on intended only to bind themselves and only employed terms to that end. They did not bind their representatives and assigns, and the law will not thus contract for them. Wiggins Ferry Co. v. Ry. Co., 73 Mo. 389. (3) But if the contract runs with the land, defendant is not bound thereby unless he had notice thereof. Houx v. Seat, 26 Mo. 178; Abraham v. Krantler, 24 Mo. 69. (4) Defendant had no actual notice of the contract. His quit-claim deed vested title in him without constructive notice. The instrument relied on was neither recorded nor entitled to record, as it must have been to affect defendant's lot and him with constructive notice. Fox v. Hall, 74 Mo. 315; Boogher v. Neece, 75 Mo. 383; Willingham v. Hardin, 75 Mo. 429.

W. W. Wood for respondent.

(1) A covenant of the kind in controversy in this action runs with the land, and is binding upon the grantee of the party using the wall. Brown v. Pentz, 1 Abb. [N. Y.] 227; Burlock v. Peck, 2 Duer, 90; Savage v. Mason, 3 Cush. 500; Richardson v. Tobey, 121 Mass. 457; Branson v. Caffin, 108 Mass. 175; S. C., 118 Mass. 156; Roche v. Ullman, 104 Ill. 11. And a covenant of this kind is binding upon the assigns of the covenantor without their being expressly named. 1 Wash. on Real Prop. [3 Ed.] p. 437, side p. 330. (2) But whether or not the covenant runs with the land, respondent's property is subjected under the agreement to the burden of the use of the wall for the benefit of appellant's premises and she is equitably entitled to be compensated therefor. Platt v. Eggleston, 20 O. St. 414; Keteltas v. Penfold, 4 E. D. Smith, 133; Standish v. Lawrence, 111 Mass. 111; Trustees v. Lynch, 70 N. Y. 441; Maine v. Cumston, 98 Mass. 317; Richardson v. Tobey, 121 Mass. 451, 459; Roche v. Ullman, 104 Ill. 11; Landers v. Martin, 2 Lea [Tenn.] 213. (3) The appellant claims solely under a quit-claim deed, and he cannot avail himself of the defence that he is a bona fide purchaser without notice. The deed did not pass any more title than the grantor had, and only what the grantor could lawfully and equitably convey. And the title he acquired is subject to all equities. He was by the face and terms of the deed notified and put upon enquiry for all equities affecting the property conveyed. Washb. on Real Prop, vol. 3, p. 375; May v. Leclerc, 11 Wall. 232; Ridgeway v. Holliday, 59 Mo. 444; Stoffel v. Schroeder, 62 Mo. 150. The rule laid down in the case of Fox v. Hall, 74 Mo. 315, is not applicable to the facts of this case. Cheatham did not give full value for the property. Elliott's testimony proves clearly that he expressly refused to make a warranty deed, because he was not getting full value. (4) Upon another well settled principle of law, the question of notice must be decided in favor of respondent. When appellant purchased the lot he found plaintiff in possession of six inches of the same, and using it for the support of her wall, and was thereby put upon his enquiry as to the character of her possession and rights thereunder. Vaughan v. Tracy, 22 Mo. 415, 421; Martin v. James, 72 Mo. 23; Hardy v. Summers, 32 Am. Dec. 167; Knox v. Thompson, 13 Am. Dec. 246, and note; Wade on Notice, sec. 279.

SHERWOOD, J.

Plaintiff instituted this proceeding in equity on the following contract:

“Article of agreement, made and entered into this seventh day of July, 1868, by and between Roach & Stitt and Austin Elliott, all of the town of Warrensburg, county of Johnson and state of Missouri. Witnesseth: That the said Austin Elliott, party of the second part, hereby agrees that the said Roach & Stitt, party of the first part, shall place the walls of their building, now in process of erection, six [6] inches on the lot now owned by the party of the second part; and the said party of the second part further agrees that when he shall join said walls he will pay to the party of the first part, one-half the cost of so much of said walls as he may join to.

In witness whereof, we have hereunto set our hands and affixed our ______, this day and date above named.

ROACH & STITT, [L. S.]

AUSTIN ELLIOTT. [L. S.]

Attest: M. M. GLADDISH.”

The substance of the petition is that Roach & Stitt and Elliott, the owners respectively of adjoining lots in Holden's second addition to the town of Warrensburg, made the agreement aforesaid; that subsequently Roach & Stitt, in compliance with said agreement, proceeded to erect and did erect a wall along the line between the two lots, and six inches on the land of Elliott, for ninety feet in length, etc.; that afterwards Elliott erected a building on his lot, sixty feet in length; that Roach & Stitt afterwards conveyed their lot to plaintiff, in March, 1881; that Elliott in the next month thereafter, conveyed by quit-claim deed, his lot to defendant, who afterwards erected on it a brick extension of the building previously erected by Elliott, and joined and connected the same with the line and party wall theretofore erected by Roach & Stitt, using thereby said wall to the extent said building was joined thereto, some thirty feet in length and sixteen feet in height; that defendant when he purchased his lot had notice of the agreement entered into as aforesaid by Elliott and by Roach & Stitt; that the cost of the wall to which defendant joined his building was two hundred dollars; that defendant was equitably bound to pay plaintiff one-half of that sum, but refuses to do so, and, therefore, plaintiff asks that defendant be decreed to pay plaintiff one-half the cost of said wall, etc.

The agreed statement of facts was filed, which, together with the deposition of Elliott, was all the evidence in the cause. The fact of notice to defendant of the agreement aforesaid, was not established; the substance of the other allegation of the petition, was, however, made out. Whereupon the circuit court made a special finding, whereby it was held that defendant had no actual notice of the agreement, yet that having purchased under a quit-claim deed, had constructive notice of the agreement, and, therefore, rendered judgment against him, and decreed that the amount of such judgment should be a lien on his property described in the petition.

The only question presented then by the defendant's appeal is the correctness of the ruling just mentioned. This question will be discussed from two points of view: (1) In respect of the general powers of a court of equity to enter such a decree as has been entered in the present instance. (2) Whether conceding the existence of such powers, it was proper to exercise them in the case at bar, owing to the fact, found by the trial court, that defendant had no actual notice of the agreement at the time he received his deed.

I. Were this an action at law there would be little or no doubt that plaintiff could not successfully maintain her action. An author of eminence touching this subject says: “With a very few exceptions, the uniform current of authorities, from the time of Webb v. Russell, 3 T. R. 393, to the present day, requires a privity of estate to give one man a right to sue another upon a covenant where there is no privity of contract between them; consequently that where one who makes a covenant with another in respect to land, neither parts with nor receives any title or interest in the land, at the same time with and as a part of making the covenant, it is at best a mere personal one, which neither binds his assignee, nor enures to the benefit of the assignee of the covenantee, so as to enable the latter to maintain an action in his own name for a breach thereof.” 2 Wash. [4 Ed.] top p. 285. And the learned author then quotes with approval, the remarks of Erle, J., in Cole v. Hughes, 54 N. Y. 444, where he says: “There is a wide difference between the transfer of the burden of a covenant running with the land and the benefit of the covenant, or, in other words, of the liability to fulfill the covenant and the right to exact the fulfillment. The benefit will pass with the land to which it is incident; but the burden or liability will be confined to the original covenantor, unless the relation of privity of estate or tenure exists or is created between covenantor and covenantee at the time when the covenant is made.” As no such privity of estate or tenure existing between the contracting parties when the agreement heretofore set forth was made, it is quite clear from the authorities cited, that plaintiffs' action, if one of law, must fail.

This, however, being a proceeding in equity, the rules prevailing in actions at law, as to the necessity of the covenant running with the land; as to the necessity of there being a contemporaneous privity of tenure or estate, in order to make the covenant something more than a mere personal one, in order to fasten it upon the land mentioned in the covenant, does not prevail here, as in contemplation of a court of equity no such privity is essential, nor that the covenant should run with the land. In order to successfully invoke equitable interposition in cases of this sort, all that is necessary is a valid agreement or covenant, and notice thereof to the purchaser. When these things are shown, a court of equity, disregarding the technical rules of law, and looking alone to the substance and justice of the agreement, such as the one now before us, will enforce it as well against the purchaser with notice as against the original party. Cases are quite frequent which illustrate and...