Davids v. Harris

Burnside, J.

It is necessary to state this case minutely, for a proper understanding of the questions it presents. The case below was an attachment execution issued by the plaintiff against R. Meredith, defendant, and Davids as garnishee, upon a judgment before an alderman by Harris v. Meredith, in October, 1836. An execution had been issued on this judgment in November, and was returned by the constable “goods levied and not sold for want of time.” In January, 1837, an al. execution issued, and was returned “ proceedings stayed;” a pluries execution in October, 1845, was also returned “no goods, and defendant not found.” Shortly after this, in October, 1845, this attachment execution issued, and was served on Davids as garnishee. Meredith, the defendant, not being within the county, was not served. The grounds on which Davids was made garnishee were as follows:—

On the 26th of March, 1834, Pennock and wife conveyed to Robert Meredith, and Catherine his wife, and the heirs and assigns of the said Catherine, a certain lot in the city of Philadelphia. Meredith (the husband) in the same year erected a brick building thereon, with a party-wall built partly on the lot adjoining. That lot is owned by the wife of Davids, who, in March, 1845, entered into a written contract with D. White & Bon, to build five houses on the last-mentioned lot, and to completely finish them, including paving, party-walls, &c., for $8,000. One of these houses was erected adjoining the Meredith lot, and in so doing the party-wall, by him erected, was broken into and used.

A measurement-bill in evidence showed the value of the party-wall to be $54.30. The counsel of Davids requested the court to instruct the jury: 1. That if White & Son contracted to erect the houses for a gross sum, which was paid to them, and they broke and used the party-wall, they, and not Davids, were liable. To this the court answered, that White & Son were the agents of the defendant, and the toser of the wall by them made him responsible. This instruction is the first error assigned. An agent is a substitute for another. Here White & Son were the substitutes of Davids, who caused the house to be built. The act of 24th February, 1721, Dunl. 39, provides that the first builder shall be reimbursed for one moiety of the charge of the party-wall, or for so much as the next builder shall use before he breaks into the wall. This claim is a chose in action: 2 Miles, 37. It is not a lien on the lot or the building, but is a personal charge against the second builder: 1 Dall. 341; 5 S. & R. 1.

The court were further requested to charge the jury, that under the evidence in the suit of Haines v. Meredith, the levy made on the defendant’s goods in 1836 and no sale thereof for want of sufficient time, an al. ex. and proceedings stayed by the plaintiff, coupled with the fact, that no further steps were taken by him until the issuing of the plnries in 1845, and in the absence of all other evidence, the judgment against Meredith in law was presumed to be satisfied. The court answered this point in the negative, which is the second error assigned. If there had been conflicting executions against Meredith, the lien of Haines’s execution would have been lost in favour of a subsequent execution: Comth. v. Stremback, 3 Raw. 341. But where the goods levied are not removed; but left with the defendant, who uses and converts them to his own purposes, the judgment is not presumed to be satisfied: Armitage’s Appeal, 9 W. & S. 74. Here there is no evidence, nor any pretence of evidence, that the plaintiff had any advantage or benefit from the levy. The goods were not removed nor disturbed, and in such case there is no legal presumption that the judgment is satisfied.

3. The last point necessary to notice, is that the house being erected on the lot conveyed to Meredith and wife, and her heirs, was the property of the wife; the party-wall was her property, and a judgment of the husband’s creditor would not attach by law. The court also answered this point in the negative. Meredith had at least a life-estate in this lot. It is not necessary to inquire further, his right of reimbursement was a personal right: Hart v. Kucher, 5 S. & R. 1; Oat v. Middleton, 2 Miles, 247. Here the owners when the last house was built stood in the relation of party and party, and this enables the builder of the first house to recover. It was a personal claim given by legislative enactment from the owner of the second house to the builder or owner of the first. Builders and owners are parties, and the act makes it a personal charge against the builder of the second house — a mere chose in action, and subject to an attachment execution, like any other debt or claim for money.

Judgment affirmed.