Pfeiffer v. Matthews , 161 Mass. 487 ( 1894 )

Allen, J.

The clause of the agreement upon which the plaintiff’s claim rests is as follows: “ When any portion of any wall so built, extended, or rebuilt shall be used by the party or by the heirs or assigns of the party by whom the portion of the wall so used was not constructed, he or they shall pay to the party who constructed the same, or to his heirs or assigns, owners of the said premises, one half of the actual cost of the portion of the wall (including the piling and the foundation thereof) so used by him or them.”

Using the wall means making use of it in the process of constructing the house on the adjoining lot, and the builder of such house is the person who uses the wall. Under such an agreement the liability to pay for one half of the cost of the wall does not extend to a grantee of the builder.

The plaintiff however contends that a mortgagee of land which is subject to a party wall agreement is liable as assignee of the covenants for a use of the wall made by the mortgagor. No case has been cited which thus holds, and we see no good reason for establishing such a doctrine. A mortgagee before foreclosure has no estate which can descend to his heirs, but by foreclosure the lien is converted into an estate, and the mortgage is changed from personal to real property. Pub. Sts. c. 133, § 6. Fay v. Cheney, 14 Pick. 399. Steel v. Steel, 4 Allen, 417. Haskins v. Hawkes, 108 Mass. 379. As to everybody but the mortgagee, the mortgagor is the owner until foreclosure. Until then, or at least until entry for breach of condition, the adjoining owner has no concern with the mortgagee. It is the mortgagor alone who is using the party wall by building a house upon his lot.

By the agreed statement of facts, it appears that no work was done upon the wall while the defendant was owner of the adjoining lot. The first stage of the work was done while Bassett was in possession as mortgagor, and the work was stopped owing to his insolvency. It does not appear that the defendant had anything to do with the mortgagor’s insolvency or with the stopping of the work. No entry was made for breach of condition. It is stated that while things were in this condition Bassett released all his rights in the premises to the defendant. It would seem that such release could have conveyed nothing, as the title was then in his assignee in insolvency. But assuming that the defendant then became owner of the equity, no work was done while he remained the owner. Soon afterwards he again conveyed the premises to Bassett, taking back a mortgage, and thus Bassett again became mortgagor, and the defendant mortgagee. After this had been done, work on the building was renewed and completed. Nearly a year after its completion, the defendant’s mortsrasfe was foreclosed.

The defendant’s liability is no greater than if at the time of the foreclosure he had purchased the equity of redemption and taken a deed from the mortgagor. Under the agreement, the heirs or assigns of the original party to the contract are not liable to the plaintiff unless they have used the wall. The wall was used by Bassett alone. The continuance of the building after its erection is not a use of the wall within the meaning of the contract. The defendant’s present ownership of the building is not a use of the party wall by him which makes him liable under the contract.

The plaintiff further argues that the conveyance to Bassett was a sham, and that the defendant was virtually the owner all the time. But the case comes before ns on an agreed statement of facts. No such fact is agreed, and we cannot draw that inference. Judgment for the defendant affirmed.