20 S.D. 42 | S.D. | 1905
This is an action for an injunction to enforce payment for a party wall, and was tried upon an agreed statement of facts. From a judgment in favor of the defendant, and order denying a new trial, the plaintiff has appealed.
The plaintiff is the' owner of lot 18, and the defendant of the adjoining lot 17, in a block in the city of Sioux Falls. In June, 1889, Andrew E. Phillips was the owner of lot 18, and Patrick Hare was the owner of lot 17, and they entered into a party-wall contract; but this contract was not recorded until after Hare had conveyed lot 17 to the grantor of the defendant. Soon after the execution of the party-wall contract Phillips commenced the construction of a building known as the “Phillips Block” on lot 18, and completed the same prior to the 5th day of July, 1892. In the construction of this block the party wall was located in accordance with the party-wall contract; the center line of the wall coinciding with the dividing line between the two lots. On July 5, 1892, Hare executed and delivered a deed to lot 17 to the person through whom the defendant and respondent now claims title. This deed was filed for record on said 5th day of July at 10 o’clock, a. m., and the party-wall contract was filed for record on the same day at 3145 o’clock, p. m. The purchaser from Hare had no notice of the terms of the party-wall contract, other than such notice as the existence of the building and of the party wall would give him. The party-wall contract contains the following stipulations: “Now it is mutually agreed by and between the said parties, for themselves, their heirs and assigns, that, if the said Phillips shall build the party wall between the said lots, he shall build the same of brick or stone, and not less than 16 inches and'not more than 2 feet in thickness, and extending back from Main avenue not less than 75 feet in depth, and shall build it on the dividing line between said lots. And, it is further, mutually agreed by and between the said parties that whenever the said Hare shall build on said lot 17 he shall contribute and pay to said Phillips one-half of the cost of said wall, and then shall have the right to use said wall in common with said Phillips. And it is further mu-' tually agreed by and between said parties that, if the said Hare shall first build said wall, he shall build it in the same manner before
It is contended by the appellant that, notwithstanding the defendant’s grantor, through whom she claims, had no actual notice and no constructive notice by reason of the recording of the contract, still the erection of the party wall one foot on lot 17 constituted constructive notice of the existence of the contract, which was binding upon her grantor and those claiming under him, by reason of the following clause in the contract: “And the said parties hereby convey to each other, their heirs and assigns, reciprocally, such interest in the land covered or to be covered by said party wall as may be necessary to carry out the terms of this agreement.” It is contended by the appellant that by this clause in the contract Phillips acquired a fee-simple estate in the portion of lot 17 covered by the party wall, and that this clause is not usual in a party-wall contract, which is usually a mere license to erect a wall upon the property of the adjoining property owners without in éffect conveying the fee title to such adjoining property owner, and that by reason of this clause of the convej^ance the erection of the party wall was constructive notice, binding upon Hare’s grantee and upon the defendant in this action. It is insisted by the respondent that no such effect can be given to the clause of the contract above quoted, and it amounts to no more than an easement as defined by section 267, Rev. Civ. Code. We are inclined to take the view that the respondent is right in her contention, and that no' fee-simple title was conveyed by this clause in the contract. It will be observed that the language is: “And the said parties hereby convey to each other * * *
We are clearly of the opinion that the trial court was right in .rendering judgment in favor of the defendant; and the judgment so entered, and order denying a new trial, are affirmed.