78 Ark. 65 | Ark. | 1906
(after stating the facts.) The facts of this case are practically undisputed.
There are two questions of law presented: (1) Whether the court had jurisdiction to hear and determine the cause of action against appellant Rugg for the recovery of half the cost of the wall;'and (2) which of the two claimants should recover the same, Mrs. Womack, the widow and legatee of J. P. Warren, the original owner of lot 47 and builder of the wall, or Eemley and Work, the grantees of Warren under deed conveying lot 47 “with all appurtenances thereunto belonging.”
The proof failed to sustain the cause of action stated in the original complaint, and the court denied the relief prayed. The amendment to the complaint, filed after the dissolution of the injunction, stated a different cause of action and one inconsistent with the facts stated in the original complaint, but one which was cognizable in equity. The agreement of Rugg to pay part of the cost' of the wall, when he commenced use of the wall, became a charge in the nature of an equitable lien upon the lot on which the wall was erected, and was enforcible in equity. Washburn on Easements & Servitudes, p. 612; Richardson v. Tobey, 121 Mass. 457; Nelson v. McEwen, 35 Il. App. 100; Roche v. Ullman, 104 Ill. 11; Keating v. Korfhage, 88 Mo. 524; Burr v. Lamaster, 30 Neb. 688; First Nat. Bank v. Security Bank, 61 Minn. 25.
The fact that only a personal judgment against Rugg was prayed for and granted did not prevent the court from assuming jurisdiction. The statement of facts in the complaint, and not the prayer for relief, constituted the cause of action which conferred jurisdiction upon the court. Sannoner v. Jacobson, 47 Ark. 31; Waterman v. Irby, 76 Ark. 551.
The more serious question in the case is whether the agreement concerning the payment for use of the party wall is a covenant which runs with the land and the right to recover the agreed sum passes to the grantee of the origiilal builder, under his deed to the lot, or whether it is the personal asset of the covenantee which passes to his assignee or personal representative.
Upon this question the authorities are inharmonious, but we incline to the view that the chancellor was correct in adopting the line of authorities which hold that such an agreement is a covenant which runs with the land and passes to the grantee of the original builder’s lot. Richardson v. Tobey, 121 Mass. 457; Maine v. Cumston, 98 Mass. 317; Tomblin v. Fish, 18 Ill. App. 439; McChesney v. Davis, 86 Ill. App. 380; Platt v. Eggleston, 20 Ohio St. 414; Adams v. Noble, 120 Mich. 545; Kimm v. Griffin, 67 Minn. 25.
Under the contract, when the wall was built, the builder became the sole owner thereof, with an easement over the strip of the adjoining lot built upon, subject to the right of the owner of the adjoining lot to use the wall upon payment of half the cost thereof. The whole wall, together with the easement over the adjoining lot, passed under the deed executed by the builder as an appurtenance to his lot. McChesney v. Davis, supra; Kimm v. Griffin, supra.
The owner of the adjoining lot, by paying half of the cost of the wall in accordance with the terms of the contract, not only obtained title to that part of the wall which was built upon his lot, but he also acquired an easement over the other lot for support of the wall. These consummated rights he obtained, not from the builder, the original owner of the lot, but through and from the person who was the owner of the lot at the time he used the wall and paid the agreed price. Though the rights of the parties were fixed by the original contract, yet the enjoyment of them was consummated only when the agreed price should be paid. Therefore, in contemplation of law, these rights were obtained through and from the present owner of the lot and wall, and he alone is entitled to the compensation.
As is well stated by the Supreme Court of Illinois in the case of Gibson v. Holden, 115 Ill. 199: “In all such cases (that is, where the title to the wall is in the builder) the title to the whole wall may be regarded as appurtenant to the lot of the builder, and so passing, by every conveyance of it, ¿until a severance of the half by the payment of the purchase money. The sale of the half of the wall does not occur, nor the title to it pass, in those cases until the payment is made; and so necessarily it is, constructively, a sale by the assignee of so much of the wall.”
The contrary view is taken by the Nebraska court, and the question is discussed with much learning and ability by that court in the recent case of Cook v. Paul, 66 L. R. A. 673, where all the authorities supporting that view are cited, but we are unable to agree with the conclusion there reached.
The decree of the chancellor is therefore affirmed.
