Gilbert v. Drew

Coulter, J.

This case, that is, the only real point in it, has been twice ruled at this term, to wit: in the case of Davids v. Harris, and the case of Todd v. Stokes. The first builder of a party-wall has but a right of action against the second builder.. The two'cases I have mentioned, do but follow some five or six cases previously ruled in this city, two of which were in this court, and one at a very early period. The cases are enumerated in Todd v. Stokes, and it is unnecessary to make an incessant repetition of them. They may be all wrong, as the learned counsel strongly contends, on the authority of the scriveners and conveyancers of the city. But I should rather think the court were surer and safer guides in questions of law.

The circumstance of the second builder having paid the alienee of the real estate of the first builder, is a matter of no consequence whatever; because, if a debtor pays a wrong person, that furnishes no reason whatever why he should not pay the right one, that is, the one to whom the debt or duty is really due.

There is as little in the argument that Drew conveyed or assigned the chose by his deed to Hanna, the person to whom the second builder is alleged to have paid a moiety of the party-wall, because the deed on the whole face of it shows an intent to convey the real estate arid its hereditaments and appurtenances, and nothing more. This chose in action of the first builder being neither an hereditament nor appurtenance, nor any quality inherent in or adhering to the real estate, did not pass.

The courts having decided that the first builder had only a personal charge against the second builder for a moiety of the cost of the wall, or so much as the second builder shall use, it did not pass to Hanna by a conveyance of the real estate, but remained as the chose in action of Drew, who has a right to recover it.

Judgment affirmed.