Mayer v. Martin , 83 Miss. 322 ( 1903 )

CalhooN, J.,

delivered the opinion of the court.

This was an action for damages by Mrs. Martin against Mrs. Mayer, arising out of the construction of an attachment to a brick wall, which Mrs. Martin claimed to be her individual property, and the latter claimed to be a party wall, to which she had the right to build, and, for reasons to be shown, without compensation. In her original declaration, consisting of two counts, filed March 21, 1902, Mrs. Martin sets up in the first count that she is the owner of the lot on which the wall stands; that she acquired title from one Caesar; that on the lot was a two-story brick building, of which the wall was part, which Caisar had erected; that Mrs. Mayer, owning an adjoining lot on the south side, built thereon a two-story brick building, and wrongfully cut into the wall, while Caesar was the owner, using it for part of the new building, and thereby became liable to her for $500, that being half the value of the wall; and Mrs.. Martin bases her right of action on an assignment by Caesar to her. The second count also bases the right of action on Caesar’s assignment, and claims damages in $1,000, because of the improper construction of the annex injuring tbe old wall. The third count, filed a year after, is without reference to Caesar’s assignment, and proceeds on the basis of the ownership of Mrs. Martin, and the unlawful appropriation of the south wall by Mrs. Mayer in erecting her annex, and claims $500 as half the value of the wall. Under this count her claim developed on the trial as a claim of title by prescription by continuous adverse possession of the south half of the wall by her and those under whom she claimed for more than ten years. This is in fact the question of the case in view of the rulings of the court below, and it is indisputably true from the testimony that there was continuous exclusive possession of the building of which all the old wall was part by Mrs. Martin and others for about thirty years, the only remaining question as to this being whether it was adverse and continuous under color of title or under the deeds. Caesar, under whom Mrs. Martin immediately claims, conveyed to her on December 31, 1900, a certain lot 29 feet wide north and south by *73 feet 9 inches long east and west, on which was the building of which the old wall was part, though it appears that in fact, unknown to any of the owners of either lot, the whole of this wall was on the lot now owned by Mrs. Mayer, the appellant, under the calls of the deeds. Caesar, having conveyed, as stated, to Mrs. Martin on December 31, 1900, afterwards, on Januarv 21, 1.901, executed to her the assignment referred to, which is in the following words: “I hereby assign, transfer, set over, and deliver unto the said Anna D. O. Martin all claims of any and every kind whatsoever, together with 'all rights of action which I may be supposed to have against Babette Mayer for damages for any and all acts done by him (her?) by way of any unlawful trespass on the said property, or by way of any unlawful entry upon the same, and by way of any acts in consequence whereof the building upon said premises has been damaged.” The plaintiff, Mrs. Martin, asked but one instruction, and the court granted it, as follows (italics ours) : “The court instructs the jury to find for tbe plaintiff and assess ber damages. She is entitled to recover one-half of the value of tbe wall at tbe time it was taken, as shown by tbe evidence, and six per cent interest tbereou from November 1, 1899, to date; and if, from tbe evidence, they believe that her buildmg was damaged by the erection of tbe defendant’s building and tbe joining of tbe same to ber building, they will also find for ber such additional sum, as they may believe from tbe evidence is sufficient to compensate for such injury.” Tbe court refused a peremptory instruction asked by Mrs. Mayer to find for defendant, refused one to find for her if tbe evidence showed that tbe wall was built as a party wall, refused dne that the jury leave tbe use of the wTall by the defendant out of consideration, and consider only whether or not W. J. Caesar was damaged by tbe annex, and finally refused one that tbe plaintiff could recover nothing for the use of the wall.

Tbe court must have taken tbe view from tbe evidence that, independently of Caesar’s deed to ber, Mrs. Martin bad title by prescription to tbe south half of tbe wall. Tbe instruction having been peremptory to find for plaintiff, tbe following must be taken as absolutely true from tbe evidence: The plaintiff, Mrs. Martin, claims title through successive conveyances from Stanton and McKenna. 1 Tbe defendant, Mrs. Mayer, claims title through successive conveyances from Kebecca Holloman. In 1867, 1868, and 1869, Stanton and McKenna owned tbe north lot and Holloman owned tbe south lot, tbe two adjoining. At some time during these three years, both lots being vacant, Stanton and McKenna desired to erect and did erect a two-story brick building, tbe south wall of which they designed to put one-half on their own lot and one-half on Holloman’s. Both they and Hollo-man thought this was done, but all were mistaken, and the wall, as a matter of fact, was put wholly on Holloman’s lot. Before tbe building was erected it was verbally agreed between Stanton and McKenna and Holloman that tbe south wall of tbe building should be a party wall, and joist boles were left in it for that purpose, and, whenever Holloman saw fit to build, he was to pay Stanton and McKenna for one-half of the wall. Stanton and McKenna never communicated the fact of this agreement to their immediate vendee when they sold in December, 1869, nor did Holloman’s heirs, when they sold in March, 1882, and no subsequent owner of either lot knew anything about such agreement until the present controversy between Mrs. Martin and Mrs. Mayer developed it after the erection by Mrs. Mayer of her annex to the wall. By actual measurements under the calls of the conveyances, none of them from Stanton and McKenna down to Mrs. Martin take in any of the old wall. The verdict of the jury for $240 was undoubtedly responsive to the peremptory charge that Mrs. Martin was entitled to recover one-half the value of the wall, and it is plain that the jury found no damages for injury to the old building by any improper construction of the new. There was much and strong evidence that not only was there no damáge, but that the old building was actually strengthened and benefited by the annex. It is the law, as we think, and it seems tó be conceded, that Holloman’s agreement with Stanton and McKenna to pay half the value of the wall when she should build did not run. with the land, even if the conveyance by its description embraced the land on which the Avail stood. The vendees of Stanton and McKenna, near or remote, cannot avail of this agreement. It must be assumed, in the attitude of this ease before us, that not one of the seven conveyances executed from Stanton and McKenna down, before there ever was any to Mrs. Martin, embraced the land on which the wall stands. The deed from Caesar, her immediate vendor, to her, does not embrace it; nor does her previous deed to the trustee, nor his to Caesar. -If, in law, the agreement did run with the land, it is conclusive that Caesar alone could sue Mrs. Mayer for one-half of the wall, because Mrs. Mayer erected her annex while Caesar was the owner, and his assignment transfers no right to Mrs. Martin to sue for this. • In this view, Caesar alone could sue. We cannot subscribe to the contention that Mrs. Martin, can recover tbis value because at one time sbe occupied the bouse of which the wall was a part for more than ten years. As to tbis it is sufficient to saythat sbe did not so occupy as owner of the wall, nor did any one of the antecedent purchasers of the north lot. The first deed to her is of date May 11, 1884, and it does not include the wall, and her deed to the trustees was of date May 10, 1891, and Csssar’s deed to- her .October 10, 1898, and none of these embraced the wall. Doubtless all assumed that the conveyances embraced at any rate the north half of the wall, if they ever thought about it at all, and the claims to this may or may not be well founded; but we repudiate the idea that it may be extended to the south half of a wall, which, as was very plainly to be seen, was built as a party wall, on the ground of open, notorious adverse possession. If Mrs. Martin had never bought from Ciesar, is there any court on earth which would sustain her in an action of ejectment against him for the south half of the wall because of adverse possession ? But her position here is that she is the owner of the south half of the wall, which is plainly a party wall, by adverse posession, when, but for Ciesar’s conveyance to her, she would not have the slightest title, either legal or equitable, to any land there at all, and this conveyance does not embrace the south half of the wall. It seems to us that the most she can claim, if anything, is damages to the north half of the wall.

Proceeding on the idea that the wall was in fact placed on the boundary, one-half on each lot,, which is the utmost that Mrs. Martin can possibly claim, this case is settled by Kells v. Helm, 56 Miss., 700, on the ground that each purchaser of either lot, finding the party wall so built, had the right to assume that any compensation as between Stanton and McKenna and Holloman had been paid.

Reversed and remanded.