Huling v. Chester , 1885 Mo. App. LEXIS 278 ( 1885 )

Hall, J.

The obligation of all contracts is ordinarily limited to those by whom they are made, and if privity of contract is wanting, its absence must be supplied by privity of estate. Miller v. Noonan, 12 Mo. App, 373; Spencer’s Case, 5 Coke 16, and note to that case ; 1 Smith’s Leading Cases (Hare and Wallace notes), 106; Webb v. Russell, 3 T. R. 393; Hurd v. Curtis, 19 Pick. 459.

It is unnecessary to cite more of the very numerous authorities for this well settled principie.

In this case there is no privity of contract between •defendant and Alonzo Ruling, and there must be privity of estate, otherwise the contract in suit does not run with the Chester lot so as to bind the defendant.

The contract granted to Huling an easement in the Chester lot, for erecting and maintaining one-half of his partition wall on that lot. The plaintiffs contend that this easement was such an interest in the Chester lot as to constitute a privity of estate between the contracting parties in that lot, and to make the contract run and go with that lot into the hands of the defendant; and that, therefore, the contract binds the defendant.

For the purposes of this case we shall assume that this position, taken hy the plaintiffs, is correct.

Who are the proper parties to maintain this action ?' So far as the easement is concerned, that belongs to the Huling lot. The owners of the lot possess the easement. But how about the compensation to be paid by the owner of the Chester lot for the use of the wall erected by Alonzo. Huling, or rather of that portion of the wall which is upon the Chester lot ? This compensation was to be paid, in a certain event, to Alonzo Huling. This compensation was a chose in action, which might, or might not, be due him. Tt was in no way attached to the Huling lot. It was not to be paid for the benefit of that lot, but solely for the benefit of Alonzo Huling, who was to erect the wall. Cole v. Hughes, 54 N. Y. 447.

The plaintiffs could maintain an action for any interference with' their enjoyment of the easement. But they can not, as owners of the Huling lot, maintain an action for the compensation, which was to be paid to Alonzo Huling, personally.

The contract in suit provides that the compensation shall be paid, in a certain event, by W. R. Chester, or “ anyone to whom he may sell” his lot; but it does not provide that the compensation shall be paid to Alonzo' Huling, or anyone to whom he might sell his lot. Had Alonzo Huling sold his lot, after having erected the house and wall upon it, to whom would the compensation have been payable: to Huling or the purchaser ? Undoubtedly to Huling. Huling in that case would have conveyed all his interest in the lot, and, as appurtenant thereto, in the party wall, to the purchaser. But why should the purchaser have received payment for a portion of the cost of building the party wall % The right to this payment did not belong to the Huling lot and would not. have gone with it. Cole v. Hughes, supra.

Had the contract, in this case, been a contract of the same terms concerning a private way between the two-lots, for the use and benefit thereof, to be built by Huling, one-half on his lot, the other half on the Chester lot, and to be used by Chester or his assigns upon payment by him or them so using it of one-half the cost of building the way; to whom would the compensation have been payable, if Huling had built the way and afterwards sold his lot? In that case, the way would have been built for the use and benefit of the two lots. An easement in the entire way would have belonged to the Huling lot, and this the purchaser would have acquired. But the right to payment of one-half of the cost of building the way would have belonged to Huling, who did the work. The easement would have been of use and benefit to the lot, and would have gone with it. The payment of such portion of the cost of the wall would have been of nó use or benefit to the lot and would not have* gone with it.

As said before, so it is in this case. The easement belongs to the plaintiffs. The right to the compensation, sued for, does not belong to them. The right being personal to Huling, upon his death went to his personal representative. 1 Chitty’s Pleading, 19; 3 Comyer’s Digest Title Covenant, 260; Smith et al. v. Denny et al., 37 Mo. 23; State ex rel. Hounsom v. Moore et al., 18 Mo. App. 406.

Alonzo Huling’s estate has been fully administered. If the right to this compensation accrued after the close of the administration, an administrator de bonis non could have been appointed as successor to the administration, and he could have maintained his action.

The judgment is reversed and the petition is dismissed.

All concur.