Richardson v. Tobey , 121 Mass. 457 ( 1877 )

Gray, C. J.

The submission of the case upon an agreed statement of facts waives all questions of the form of the declaration. The deed of Lee and others to the plaintiff, having been duly acknowledged and recorded, was notice to all subsequent purchasers, so far as it conveyed an interest in, or created a charge upon, real estate. The clause inserted in that deed, being under the seal of the grantors, was so executed as to operate as a grant, or a covenant, or both, according to the intention of the parties, as manifested by its terms.

Those terms show: 1st. A grant to the plaintiff of the right to place half of his partition wall upon the adjoining lot, then owned by the grantors; 2d. A grant to the plaintiff of a right of property in the wall, when so built, at least until it should be paid for as afterwards provided; 3d. A covenant that the wall might be so built, imposing a burden, for the benefit of the plaintiff’s land, upon the adjoining lot; 4th. A covenant that the -owner of that lot, whenever he should use the wall, should pay one half of the cost of the same, or of so much as he should use; 5th. And thereby a clear manifestation of an intent that these covenants should bind all assigns of the grantors as owners of that lot. The defendant, having subsequently purchased that lot, and made use of the wall built by the plaintiff, would seem to be liable, according to the decision in Savage v. Mason, 3 Cush. 500, as upon a covenant, the burden of which ran with his land, to pay the amount agreed. See also Weld v. Nichols, 17 Pick. 538, 542, 543; Bronson v. Coffin, 108 Mass. 175, 182-184, and 118 Mass. 156.

But even if, in accordance with the decision in Cole v. Hughes, 54 N. Y. 444, cited for the defendant, the agreement to pay money should be considered a personal covenant only, not running with the land of the grantors, yet the plaintiff clearly had a right of property in the wall which she built in the exercise of the right which had been granted to her in that land. Maine v. Cumston, 98 Mass. 317. Standish v. Lawrence, 111 Mass. 111. The defendant, having made use of the wall so built, cannot deny, the plaintiff’s right therein, and is bound to compensate her for such use, either according to the covenant in the deed from his grantors to the plaintiff, or according to the value of the wall. We need not consider what the amount of such compensation should be, in the absence of agreement between the parties to this action, because these parties, in the case stated, have themselves -assessed the amount, by agreeing upon the sum which the plaintiff shall recover if she can maintain her action.

Judgment for the plaintiff.