Standish v. Lawrence , 111 Mass. 111 ( 1872 )

Wells, J.

As against Goddard and Lawrence, and their grantees with notice, their indenture with and deed to the plaintiff gave him the right to build a party-wall upon the boundary line of his land, and to own the entire wall, with right of support, until the adjoining owner should build, and use it. Thereupon such adjoining proprietor would be bound to pay one half the cost of the wall, and be entitled to become owner of the same in common with himself. Maine v. Cumston, 98 Mass. 317.

The subsequent purchaser of the adjoining land, by whom the wall was used for the purposes of building thereon, took his title with full notice of these rights of the plaintiff. By the terms of his deed, the obligation was imposed upon him to “ pay on demand to the owners thereof, one half the cost of the brick partition wall now standing upon the west side of the granted land.” With such notice of the plaintiff’s rights, he could not avail himself of the use of the wall without compliance with the terms under which it had been built. If he should so use it, the law would imply an assumpsit for one half the cost.

There is no stipulation for the payment of this sum by the party to the indenture. The clause relied on defines what are to be the rights of parties who may be or become owners of the adjoining lots ; and the liability for the payment arises out of the exercise of those rights. The only covenant of the testator upon which the defendants could be held is that “ the deed of said lot is to be made conformably to this agreement.” As understood by both parties, this covenant applies to the conveyance of the lot adjoining that of the plaintiff.

There has been a substantial, if not a literal, compliance with this stipulation. The deed by which the adjoining lot passed from the actual control of the plaintiff’s grantors, and under which alone its present owner has any title, was “ made conformably to this agreement.” All rights to which the plaintiff was entitled under his agreement have thus been fully secured to him. and he has no cause of action against these defendants.

Judgment for the defendants.