author: Mason, J.

text:
    Darvin and others v. Hatfield and another.
    A purchaser at a sale under a decree may refuse to complete his purchase, either because the court had no jurisdiction of the subject-matter, or had acquired none over all the persons interested in the property sold, or because some statutory provision has been violated or neglected which renders the proceeding invalid.
    Such a purchaser cannot object that the decree was erroneous, or that the court decided wrong upon any point affecting the merits of the controversy.
    Nor can he object to the mere form of the proceedings, nor to irregularities in matters of practice.
    So where a bill was filed to set aside a mortgage as invalid, the answer insisted on its validity, and prayed for a sale of the lands mortgaged to pay the amount due, and the court, on hearing the cause on the pleadings and proofs, adjudged the mortgage to be valid, and decreed a sale of the premises and payment of the sum due; it was held, that whether the decree directing the sale were right or wrong, a purchaser at the sale could not be permitted to object to it.

      Held, further, that upon such a bill, answer, and issue, the court had power, and it was the duty of the court, to make such a decree.
    An infant plaintiff is as much bound, and as little privileged, as a plaintiff of full age.

      Hence, it is no objection to mating a decree of sale, according to the prayer of an answer, that the plaintiffs in the suit are infants.
    Where in a suit to set aside a mortgage, the court, on sustaining the mortgage, decrees a sale of the premises for its satisfaction, it is no objection to the decree, or to a title under it, that no notice of lis pendens was filed pursuant to the statute; it appearing that all the parties interested in the mortgaged premises were parties to the suit.
    The statute applies only to bills filed for the purpose of foreclosing mortgages, and it is not to be extended by construction to cases not within its object or spirit.
    (Before Duer, Mason, and Campbell, J. J.)
    March 22, 1851.
    This was a petition by the purchaser of the premises, sold under the decree in this cause, to be released from his purchase.
    The bill in this cause was filed in the month of February, 1844, in the court of chancery, by the respondents, who are infants, and sole surviving heirs of Peter Peterson, deceased, to set aside a mortgage upon the premises in question, given by the executors of Peterson to Jesse K. Hatfield, one of the defendants, on the ground that it was given without any legal authority. • .
    Hatfield put_m an answer to the bill, in which he insisted on the validity of the mortgage, and submitted and prayed that the real estate might, by the decree of the .court, be ordered to be sold, and the proceeds applied fto the payment of his costs, and of the moneys secured by the mortgage.

    The cause was heard upon pleadings ánd proofs before the late assistant vice-chancellor, Robertson, who decreed against Hatfield, and an appeal was taken from his decision by Hatfield to the snpreme court in equity, whence it was transferred to this court.
    On the hearing of the appeal, this court modified the decree of the assistant vice-chancellor so far as the same affected the appellant Hatfield, declared the mortgage to be a valid mortgage, that the executors had power to execute the same, and that the' appellant was. entitled to the whole principal and interest due thereon; and also directed a reference to ascertain the amount due to him on the mortgage, and decreed that in case the respondents should not pay the sum which might be reported due in sixty days thereafter, the premises should be, sold to raise the same.
    At the sale under this decree the petitioner became the purchaser, and paid the ten per cent, on the purchase money required by the terms of sale.
    He now asks to be released from his purchase, and to have the ten per cent, refunded him, on the ground that a good title cannot be made under the decree; and he contends,
    1. That the court were not authorized, and had no power, under the pleadings in the cause, to order a sale, and
    2. That no notice of lis pendens was filed, as required by the 'act of May, 1840, and of course that no proof of the filing of any such notice had been or was made when the decree was rendered in this cause.

      M. 8. Bidwell, for the purchaser.

      W. Silliman, in support of the decree, and for the defendant, Hatfield.
   By the Court.

Mason, J.

The first question to: be considered is as to the nature of the objections which a purchaser at a judicial sale can properly interpose to the proceedings by virtue of which the sale is made.

He may, undoubtedly, object that the court making the decree had no jurisdiction of the subject-matter; for in such case the decree is an absolute nullity, and the purchaser acquires no title.

He may object also, that the court had not acquired jurisdiction over all the persons having an interest in or lien upon the property sold, either by reason of their not having been made parties to the suit, or because there is no proof that they appeared, or were properly served with process; for in either of these events their rights are not affected, and the purchaser does not obtain an unincumbered title. Or, lastly, he may object that some statutory provision has been violated or neglected, which rendered the proceeding invalid.

But the purchaser can never be allowed to object that the decree is erroneous, or that the court have come to a wrong conclusion upon any point affecting the merits of the controversy. That would involve the re-examination of the questions already decided, and would in effect give to the purchaser the right to a rehearing of the cause, and if he could thus raise the question before the same tribunal which made the decree, he would of course have the right of bringing it by appeal before a higher tribunal. If the immediate purchaser under the decree should be allowed to do this, every subsequent purchaser of the premises, however remote, deriving title through the decree, must enjoy the same privilege. It is' very apparent that such a doctrine would destroy the value of all sales under the decree of the court. It would also violate an elementary principle, that no person can appeal from a decree who was not a party, or who does not legally represent a party, in the court below. (Steele v. White, 2 Paige, 478.)

Neither is it competent for a purchaser to object to the mere form of the proceedings, which are more or less governed by the discretion of the court, or to irregularities in matters of practice. It is now definitively settled, that questions of practice are not the subjects of appeal, because they are addressed to the discretion of the court; (Fort v. Bard, 1 Comst. 43 ; Schermerhorn v. The Mohawk Bank, Ibid. 125;) and if the parties to the suit cannot appeal from a decree on such matters, a fortiori, a stranger cannot be allowed to make them the ground of refusing to complete his purchase. “ It seems,” says Sugden, “ that it may be laid down as a general rule that a purchaser shall not lose the benefit of his purchase by any irregularity of the proceedings in a cause. He is bound to see that the sale is according to the decree, and if it should appear to have been contrary to the decree, it would not be good.” (1 Sugd. Yend. & Purch. 102.) But if it be according to the decree, he is protected in his purchase, however erroneous the decree may be, or however irregular the proceedings, provided the court had jurisdiction over the subject-matter, and over all the parties having a lien on or interest in the premises. (Jackson v. Roosevelt, 13 John. 97.)

With these familiar principles in view, let us examine the objections taken by the purchaser in the present ease.

The first objection, and the one on which the counsel for the purchaser appeared on the argument chiefly to rely, was this, that the court had no power, under the pleadings in the cause, to decree a sale of the mortgaged premises, but that the defendant, Hatfield, if he wished to enforce his mortgage, should have filed a cross bill for that purpose. The objection does not deny the jurisdiction of the court over the subject-matter in controversy, and over the parties; on the contrary, it admits that the court had jurisdiction of both, for it implies that if a cross bill had been filed, which would have been necessarily between the same parties, and in the same court, a decree of sale made upon the original and cross bill would have given a good title to the purchaser.

Here then is a controversy as to the validity of a mortgage, purporting to have been given by executors by virtue of a power contained in the will of their testator. The heirs of the testator file a bill, and pray to have it declared null and void, on the ground of want of power in the executors to give it. The mortgagee insists in his answer that the executors had full power under the will, and prays that the amount due upon the mortgage may be paid him, or in default thereof, that the mortgaged premises may be sold. In the course of the proceedings, the due execution of the mortgage, and the payment and proper application of the money it purported to secure, are fully proved, and the only question left for the court to pass upon is as to the power of the executors. If they had no such power, it was utterly void, and the court by its decree would so declare. If they had the power, it was a valid lien on the property, and the mortgagee would, as a matter of course, be entitled to enforce it. The court decide in favor of the validity of the mortgage, and authorize the mortgagee, in case the amount is not paid him, to resort to a sale of the premises on which he has the lien.

Under this order of sale, the petitioner before us is the purchaser, and he now comes before the court, and objects that they have made an erroneous decision, and that, according to the uniform course of proceeding in chancery, a decree of sale could not have been granted in this suit except upon a cross bill.

Admitting, for the sake of the argument, that the court erred and mistook the practice or the settled rules of proceeding in such cases, it appears to us that, by the well established principles which we have above briefly stated, the purchaser is not at liberty to make this objection. ' Whether the error which he alleges be one of practice merely, or one of pleading, which might be the subject of an appeal, in either light, it belongs to that class of objections of which the parties to the suit alone can take advantage.

But inasmuch as the objection was fully discussed on the argument of the petition, and- no written opinion was delivered on the rendition of the decree, we think this a proper occasion for stating our views on the principal question.

We are aware that it is laid down jn the elementary treatises on pleadings, that a defendant cannot pray in his answer for any other relief than to be dismissed from the suit with costs, and that if he has any relief to pray, or discovery to seek against the plaintiff, he cannot do it by cross bill, (Lube, Eq. PI. 34,) and we were referred on the argument to some cases decided in the western and' south-western states, in which it was held expressly that a defendant was not entitled to relief though he had prayed for it in his answer, and also prayed that his answer might, in that respect, be considered as a cross bill for relief. And in one case, the relief thus prayed for was denied, although the other parties to the suit had elected and consented to consider the answer as a cross bill. (See particularly Harris v. Carter’s Admin., 3 Stewart Al. R. 133 ; McConnell v. Hodson, 3 Gilman, 640.) But the rule has not been maintained in such strictness, either in England or in this state. Admitting it to be correct and proper in the great majority of cases, it is nevertheless a rule adopted by the courts for convenience, and the furtherance of the rights of parties, and which can therefore be modified or altered whenever its application would work injustice, or put the parties to unnecessary expense. And it accordingly has been departed from in cases which seemed to the court to warrant a departure.

Thus, in Fife v. Clayton, (13 Ves. 546,) the bill was filed by the purchaser of an estate at auction, for a specific performance of the agreement of sale. • He insisted that he was entitled to a right of common, with the estate. The defendant proved that at the sale the right of common had been expressly excepted, and the plaintiff thereupon moved to dismiss the bill. The defendant, however, insisted that he was entitled to a decree against the plaintiff for the performance of the agreement as proved on his part, without a cross bill, and referred to a case before Sir William Grant, in which he had dismissed with costs a cross bill filed under similar circumstances, considering it unnecessary, as the court would upon the answer have decreed a specific performance of the real agreement, if set up in the answer. The Lord Chancellor said that the old course required a bill and cross bill, but, he added, I am willing to follow a precedent that will save expense, and is right upon principle; and he decreed a specific performance of the contract proved by the defendant. The plaintiff in that case having contended for a different construction, would not have been entitled to a decree for the agreement established by the defendant, for it was not the case made by his bill. (Clowes v. Higginson, 1 Ves. & B. 524.) A similar decision to that in Fife v. Clayton was also made in Gwin v. Lethbridye, 14 Ves. 585.

The case of Codwise v. Gelston (10 John. 517) appears to have been decided by the court of errors on the same principle. It was a bill filed by the assignees of Comfort Sands, a bankrupt, for the purpose, among other things, of setting aside a judgment obtained by Gelston against the bankrupt prior to his discharge, on the ground that he had taken the body of the bankrupt in execution, and had afterwards voluntarily released him. The defendant denied the allegations of the bill in that respect, and prayed to be dismissed with costs. He afterwards, however, presented a petition to the court praying that his judgment might be paid out of the proceeds of real estate of the bankrupt sold by order of the chancellor, and brought into court. The chancellor dismissed the bill as against Grelston with costs, and also denied his petition with costs. On appeal by Grelston from the order denying the petition, it was unanimously reversed. Kent, Oh. J., said “it may be difficult to draw a precise line between cases in which a party may be relieved upon petition, and in which he must apply more formally by bill. Petitions are generally for things which are matters of cov/rse, or upon some collateral matter which has reference to a suit in court. The case before us was of the latter kind, as O. asked only to be paid the amount of moneys brought into court, and upon which he had a lien. Grelston was not a novus hospes. He- had been before the court in this very cause, and his case, was .well known, and the court had already declared that he was entitled to priority of satisfaction in preference to the general creditors.” “ The mode of application depends very much upon the discretion of the court, and in this case I think it was well enough, and suited to the object.”

The case before us resembles that of Codwise v. Gelston, in several important particulars. The bill there was to set aside a judgment, here it is to set aside a mortgage. In each case the security was held to be valid, and the right of the creditor to payment, out of the property or its proceeds, established. In each also, the question was raised whether the defendant could have the relief he asked for in that suit, or whether it was necessary to file a cross bill. In the case of Grelston, however, the prayer for payment was by petition, after he had put in an answer praying to be dismissed. In the present case, the defendant, in the answer itself, prayed that he might have a-decree for payment, and a sale of the property to enforce it. We aré unable to see any difference in principle between the two cases, or why a cross bill should be necessary in the one rather than in the other.

In Clark v. Hall, (7 Paige, 3382,) we have another application of the same principle. The bill in that case was for specific performance by a vendee against his vendor, of a contract for the sale of land. A decree was made in favor of the plaintiff. The defendant then appealed, but afterwards dismissed the appeal, and applied to the vice-chancellor for an order that the complainant pay the purchase money, or that his bill be dismissed, which application was granted, and, as the report states, exclusively on the authority of Codwise v. Gelston. When the cause came up, on appeal to the chancellor from this last order, he held that the decree should not have directed the bill to be dismissed on default of payment by the complainant, and that the defendant was entitled to a sale of the premises and a personal decree against the complainant for any deficiency in the proceeds of the sale to raise the purchase money. The chancellor said that the decree was in substance a decree for the specific performance of the agreement by both parties, and that the defendant was entitled, as a matter of course, to an order compelling the plaintiff, on his part, to perform the agreement, for the specific performance of which he had obtained a decree against the defendant.

Now, although there is a difference between a bill seeking to •enforce an agreement, and a bill to set one aside or cancel it, the plaintiff in the one offering to perform his part, and in the other denying his obligation to do so, yet the principle on which the defendant is entitled to relief is the same in both cases, to wit, that the agreement is established by the decree of the court as valid and binding on both parties. The matter is res adjudicata; the parties are before the court; they have submitted the question as to their mutual rights under it to its decision, and it would be an idle ceremony to compel the defendant to resort to a new suit, in order to obtain that relief to which the court had adjudged him entitled. The principle of the decision in Clark v. Hall, and in the other cases we have cited, is manifestly at variance with the rule that a defendant cannot obtain substantive relief, in regard to the subject matter of the controversy, wifhoút filing a cross bill. But we think that all establish the position that the rule is one of convenience merely, and that whether a party shall be put to a cross bill or not, rests in the discretion of the court, and that its discretion will be so exercised as to dispense with a cross bill, whenever justice can be done to the parties without it.

The case of Carnochan v. Christie, (11 Wheat. 446,) was cited as establishing the 'position, that where a bill is filed to set aside an agreement or conveyance, the conveyance cannot be established without a cross bill filed by,the defendant. Such is the marginal note, which has been copied into various digests and elementary treatises, as a decision of the supreme court of the United States on this point. On examining the report, however, it will be found that the court made no such decision. The case arose upon an award of arbitrators. A bill had been filed to open and restate an account, and to cancel deeds which had been executed to the defendants as a security,for the balance alleged to be due. The whole matter was submitted to arbitrators, who made an award. One of the exceptions taken to the award was, that the arbitrators had exceeded their power in requiring the plaintiff to give to the defendant a clear unincumbered title to the lands pledged, which, it is to be inferred, the counsel for tbe plaintiff contended they had no right to do under the pleadings in the cause. Chief Justice Marshall, who delivered the opinion of the court, does not discuss this question at all, but gives two answers to the objection, first, that the arbitrators had not required the plaintiffs to give a title, and second, if they had done so, it was by no means clear that the arbitrators would have exceeded their powers under the submission ; and the question, what would have been the rule if the cause had come before the court to be determined on the pleadings and proofs, did not properly arise, and was not passed upon by the court.

The modern doctrine of recoupment is nothing more than an application of the same principle in actions at law. It is now, perfectly settled, that in an action for the breach of a contract, if the plaintiff has violated some'stipulation in the same contract, the defendant may, instead of suing in his turn, re-, coup or cut off the damages to which the plaintiff might be entitled, by the amount of damages which the defendant has sustained. And this has been allowed, not in consequence of any statutory enactment, but in the exercise by tbe courts of a sound discretion for the advancement of justice and the diminution of expense. • =

"We did not think, that sitting as a court of equity, we were called upon to be less liberal than courts of law, or that we ought to be tied down by technical rules, from which courts of equity in England and in our own state had cut themselves loose. Had we refused to grant the defendant the relief which he asked, and' compelled him to file a cross bill, we should have insisted upon a technicality merely for its own sake. We had not only decided that the executor had power to give the mortgage, but its due execution and the payment of the money mentioned in its condition had been duly proved. It followed, as a matter of course, that the appellant was entitled to payment. Why then require him to file a cross bill ? We should have been deficient in that regard to the interest of these infants, which the court ought to manifest, if we had needlessly burthened their scanty inheritance with the costs of another suit. Such were the considerations-which induced us to make the decree of sale in favor of the defendants in this cause. But whether the decree was right or wrong, we think it manifest from what has been said, that the purchaser has no right to call it in question.

It was further objected tnat the plaintiffs were infants, and that the court cannot transfer the title of infants by decree, except where the statute gives it authority. It was not contended, however, that the court has no power to decree the sale of mortgaged property because the equity of redemption belongs to infants, and the objection resolves itself into the question we have just been considering of the form of proceeding.

It is well settled that an infant plaintiff is as much bound and as little privileged as a person of full age. This was so held in Lord Brooke v. Lord Hertford, (2 P. Will. 518,) and in Gregory v. Molesworth, (3 Atk. 626,) and has been held to be good law ever since. (Leons v. Hyle, 1 Paige, 486; Morrison v. Morrison, 4 Myl. & Cr. 225.) If the court then would have had power under the pleadings in this cause to order a sale, had the plaintiffs been adults, they have the same power though they are infants.

It was also objected that no notice of lis pendens was filed as required by the statute. The object of the notice is to apprise persons, not parties to the suit, of its pendency, and for that purpose the court originally by rule required it to be filed; 'but whether filed or not, the decree bound all the parties to the suit.

The act to reduce the expense of foreclosing mortgages in the court of chancery, passed May 14th, 1840, required this notice to be filed as a substitute for making creditors by judgment and decree parties to the suit, and absolutely prohibited the court from making a decree in a foreclosure suit, unless such notice was filed; and although that part of the law which dispensed with the necessity of making such creditors parties, was by the act of 1844 repealed,' yet the prohibition against making a decree in such case, without proof of the service of the notice, was continued. It declares that no decree of foreclosure shall be made, unless the filing of the notice shall be proved as required by the act.

The language is general, but it must be construed according to the subject matter. The object of the law was, as appears from its title, to reduce the expense of foreclosing mortgages. The act relates to bills filed for that purpose, and to them only. The 8th section, which requires the notice to be filed, and prescribes its contents, is applicable in terms to bills of foreclosure. It commences thus: “ Whenever a bill for the foreclosure of a mortgage shall be filed, it shall be the duty of the complainant, or his solicitor, to file a notice,” &c., &c.

The bill in this case was not filed to foreclose a mortgage, but to set one aside. The notice could not have been filed pursuant to the law. Besides, the prohibition is in derogation of the general powers of the court, and is not to be extended by construction. If it has the force which the counsel claims for it, to render a decree void, even as to the parties to the suit, unless the notice shall have been filed, its operation must be confined to those cases which come within the very letter of the law.

"We do not think the objection is tenable. It is not pretended that there are any persons, not parties to the suit, who have any claim or lien upon the premises. All the parties to the suit are bound by the decree, and if they are all the parties in interest, we are of opinion that the sale under the decree of'ihe court gives to the purchaser a good title.

His petition must therefore be denied.


source: Caselaw Access Project

author: Sandeord, J.

license: Public Domain

text:
    Sherred v. Cisco.
    There is no duty or obligation on the owners of adjoining building lots in a city, to unite in building a party wall on the dividing line of such lots,
    If the owner of a city lot, on building upon it, place half of the wall upon the adjoining lot, the owner of the latter is not liable to contribute towards the expense of the wall upon his subsequently using in his own erection the part of the wall which stands upon his own land.
    Where a party wall, which has been jointly built by two adjoining owners, one half on the land which each owns in severalty, is destroyed, there is no obligation resting upon either to rebuild it, or to unite in building another party wall,
    The parties uniting in building á party wall at their mutual expense, do not thereby become tenants in common of the wall, much less of the land on which it is erected.
    Each owns in severalty the portion of the wall situated on his own land, with no qualification except that neither has a right to pull it down without the other’s consent.
    On a party wall, built at the joint expense, being destroyed by fire, the owner of one of the two lots upon which it stood, proceeded, without the agreement or concurrence of the owner of the other lot, to build a new wall on the site of the old. The owner of the other lot subsequently built on his lot, and rested his beams on the new wall. Held, that he was not liable to contribute to the owner of the adjoining lot any portion of the expense of erecting such wall.
    There is no lien for the expense of building a party wall against one who buys the tenement resting upon such wall, without notice of the lien.
    The fact that one half of the wall stands upon the adjoining lot, is not notice of any lien for the cost of its erection in favor of the neighboring owner who erected it.

      The case of Campbell v. Mesier, 4 J. O. R. 334, and 6 Ibid. 21, considered, and its application limited.
    (Before Oaklet, Ch. J., and Sandeord and Paine, J. J.)
    Feb. 10;
    April 12, 1851.
    This was bill in equity, filed in tbe supreme court, from whence the cause was transferred to this court. An answer was put in, a replication filed, and evidence was introduced at the hearing of the cause. The facts disclosed by the pleadings and proofs were as follows.
    For several years prior to 1845, the complainant, Sarah Sherred, was seised in fee of a lot known as number thirty-one, on the easterly side of Broad-street, in the city of New York; and Richard Duryee, in his lifetime, and after his death, his heirs, were seised in fee of the adjoining lot on the north side, known as number twenty-nine. ' Each lot was covered by a store or warehouse. The buildings were separated by a single brick wall, resting on a stone foundation, one half of which was upon the land of Sherred, and the other half on the land of Duryee. The beams of the two stores rested upon this common or party wall. Duryee had executed several mortgages on lot number twenty-nine, which were duly recorded. Prior to July 19th, 1845, Duryee died, and the mortgagees to whom three of the mortgages were executed, commenced proceedings for their foreclosure against Duryee’s heirs and the subsequent mortgagees. While the foreclosure was pending, on the 19th of July, 1845, both of the stores, 29 and 31 Broad-street, were destroyed by fire, and nothing was left of the party wall except the stone foundation. •
    Immediately after the fire, Sherred proceeded to rebuild the store on lot No. 31, extending it a little further in depth than the former building. In rebuilding, her contractors commenced on the stone foundation of the former wall between the stores on 29 and 31, and after raising it with stone about a foot higher than the stone wall was before, built upon it with brick, the side wall of her store, four stories high. The new wall, built at the sole expense of Sherred, thus stood one half on her lot, and the other half on the Duryee lot. Her store was finished in the fall of 1845.
    The bill charged that she built this wall after applying to Duryee’s heirs to unite with her in so doing, with their assent and approval, and on their agreeing to pay half the expense,' if they could obtain the money to rebuild their store. These statements were put in issue, and were not proved.
    The foreclosure of Duryee’s mortgages resulted in a decree for a sale, under which the defendant Cisco became the purchaser of lot 29, for $15,600, at a sale made by a master in chancery on the 27th of January, 1847. The master conveyed the lot to him on the 15th of February, 1847. The defendant, soon after his purchase, built a warehouse or store on lot 29, and used the wallvso built by Sherred for one of the side walls of his store, inserting therein his timbers and beams. The first story of his store extended to the same depth as Sherred’s new store, but the upper stories did not extend as far back from the street, by about fourteen feet, as Sherred’s store extended. As to those stories, the portion of the party wall not used by the defendant, was shown to be a detriment to him, rather than a benefit.
    Sherred applied to the defendant to pay half the value of the •wall as used by both parties, which he declined to do, on the ground that he purchased and paid for the half of it standing on his lot, at the master’s sale. There was no proof that the defendant had any notice, till after he commenced building, that Sherred had built the party wall at her sole expense, or that she had not been paid for half of it, or that she claimed payment therefor. It was proved that the value of the half of that part of the party wall which the defendant made use of in constructing his store, was $459.14. The value of the entire wall built by Sherred between upon the two lots, was $1146.

      J. T. Brady, for the complainant.
    I. As between the plaintiff and Duryee, the obligation existed on the part of each, to contribute equally to the expense of repairing or rebuilding the party wall between 29 and 31 Broad-street. That it was a party wall is presumed in law, and is also proved as matter of fact. (Campbell v. Mesier, 4 J. C. R. 334; 3 Kent’s Comm. 437.)
    Being a party wall, it must be presumed, and the fact is, that it was built under some agreement between the adjoining proprietors. This fact is alleged in the bill. The effect of the agreement is a grant by each of these proprietors to the other, of so much of the land ón the lot of each as may be necessary to maintain a party wall for their mutual benefit.
    We refer to the same authorities as above; the act of March' 19th, 1813, ch. 85, § 20 ; and the N. Y. Ordinances referred to in 3 Kent’s Comm. 438, note.
    II. The defendant as owner of the fee of 29 Broad-street, is bound to contribute to the expense of the rebuilding of the party wall above the foundation.
    The liability is in these cases an equitable one, and though it may be traced to some original agreement or acquiescence, is founded immediately on a duty arising from the fact that the party wall is held by the parties as at least quasi tenants in common. (4 J. C. B. supra.)

    This liability is not technically a lien on the land, but follows and is attached to the estate. The purchaser from the original owners takes the land subject to an equitable duty, of which he has notice from its physical condition. He knows that the wall of separation is a party wall, and that while he succeeds to the right, he also incurs the obligations, of those whose title is vested in him.
    In this case the defendant had such notice, and he has in fact used the party wall in an erection which he made after such wall was built.
    There is no difference in principle between-the rebuilding and repair of this wall. The foundation remained after the fire .of 19th July, 1845, and the rebuilding of the upper portion of it was in fact and in law a repair, to which the adjoining proprietor was and is bound to contribute. .
    The defendant -can claim no greater or better right in this case, than one who takes an estate subject to an easement or a right of way. He knew the law about party walls, and knew that in fact the wall in question was a party wall when he purchased at the mortgage sale.
    ■ III., Any agreement made between the plaintiff and Duryee, would not deprive the plaintiff of any equitable right of contribution which attached to the estate. At most, it would be merely a cumulative remedy.
    IV. There is no injustice in requiring the defendant to contribute. Having used the wall in question, he has the actual benefit of one half of its cost. And if hereafter it should be destroyed, we allege that he could compel the plaintiff to contribute one half of the cost of its repair or reconstruction. If this be so, it would be most unjust not to make against him, the decree claimed in this case; and if Campbell v. Mesier is law, there is no defence.

      W. C. Wetmare and M. 8. Bidwell, for the defendant.
    The defendant became the owner by the master’s deed, on the 15th February, 1847. This wall was built a year and a half before. Suppose the Duryees’ had built after Sherred, and used the party wall, and then the defendant had bought from the Duryees’, could he be liable to pay for the wall ? Assuredly not. But his case is stronger. He holds under mortgages given long before this wall was built. The ease in 4 J. C. R. only shows the right of Sherred to call on the "Duryees’, the owners when the wall was built.
    The bill states an arrangement with the Duryees’ by which they agreed to pay Sherred for one half the wall. It was built on that contract, and where there is an express contract there is no lien. If there be a lien, how long is it to continue ?
    If Sherred had built a house on this lot instead of half a wall, would there have been a lien against a purchaser under these mortgages ? The defendant has all the title of the mortgagees. If the plaintiff is right in her claim, she could go on at any time, without consent, or consulting any one, and make the owner of the next lot liable.
    The case of Inglis v. Bringhurst, 1 Dall. 341, shows, that one who builds a party wall under a statute giving him a remedy against the owner of the next lot, has no lien against a prior mortgage.
   By the Court.

Sandeord, J.

The plaintiff relies entirely on the case of Campbell v. Mesier, (4 John. Ch. R. 334, and 6 Ibid. 21,) to sustain this suit. It was there decided, that where there was an old party wall standing between two houses, which had become ruinous, and the owner of one of the houses being desirous to rebuild his house, after notice to the owner of the other, and a request to him to unite in the work, took down the old wall and rebuilt it on the same site, with and for his new house, the owner of the adjoining house was bound to contribute ratably to the expense' of the new wall; but not beyond the extent of the height and quality of the old wall. It was in effect held also, when the case was before the chancellor on the equity reserved in 6 J. C. R. 21, that a purchaser of the hóuse from the owner thus liable, took it subject to the charge upon it for contribution. But we suppose this was on the ground that the purchaser was aware of the claim of his neighbor for contribution when he purchased, as was apparent from his taking a covenant of indemnity in respect of the use of the party wall, in his deed of the house.

We think this case differs from Campbell v. Mesier, so far that the decision of the latter is not controlling. In the first place, the defendant bought his lot with the new wall upon it, without notice of the plaintiff’s claim. Next, when the wall in question was built by the plaintiff, there was no party wall in existence. There had been a wall, which served as a partition between the two stores, (whether properly called a party wall or not, in the sense used by the chancellor in the case cited, we will not here inquire,) but it was destroyed with those stores. The stone foundation that remained does not alter the matter. Either party could remove so much of it as rested on his ground, with the rubbish on his lot, on preparing to rebuild. Then the plaintiff on one side, and the mortgagees on the other, Duryee’s heirs really having no interest in the subject, owned two adjoining vacant lots in severalty, where there had once been a partition wall forming the mutual support of two adjoining buildings. The plaintiff, without notice to the mortgagees, and without their assent or knowledge, rebuilt her store, and placed the partition wall on the site of the former one. There was no “ equality of right and interest” in an existing wall, which it was necessary, for the two houses then supported by it, should be rebuilt, and in which wall the parties “ had an equal interest,” as was the chancellor’s view of the facts in Campbell v. Mesier. These parties had no such interest, for they had no joint or common interest whatever. Each owned in severalty the half of the ground on which the former wall stood. Neither was under any obligation or duty to build upon his lot, or to suffer the other party to place part of a division wall upon it. The principle of contribution applicable to tenants in common of a mill, and to the discharge of a common burthen or charge upon lands held in common, is therefore not applicable to this case; and we think it is not governed by the principle of the chancellor’s decision in the authority relied upon by the plaintiff.

By the common law, every owner of land is his own judge of the propriety of building upon .it or leaving it vacant; and when he does build, of the manner and extent of his buildings. In the absence of statutory provisions, he may build with what material he pleases, and he is under no obligation to give to his neighbor any use or advantage of his land, by way of support, drip, or easement of any description. If a stranger dispossess him, or enter upon his unoccupied property, erect buildings, and make valuable permanent improvements upon it; he is not under the slightest obligation to recompense such stranger for any portion of the expense, on recovering the possession of the land. So unyielding is this doctrine, that a mortgagee in possession will not be allowed, on redemption by the mortgagor, for the expense of clearing up unproductive wild lands mortgaged, (Moore v. Cable, 1 J. C. R. 885,) and where a vendor breaks off a contract of sale, the vendee cannot recover for his improvements made on the lands sold, while in possession under the contract. (Gillet v. Maynard, 5 John. R. 85.) Whether the entry were tortious, or in the most perfect good faith, the common law is uniform in refusing to permit the real owner of the land to be benefited without his own request or sanction. And if one, having made valuable erections on the land of another, while in possession under a claim of title, remove the buildings from the land before the owner recovers possession, he is liable in trespass for their value. (Dewey v. Osborn, 4. Cowen, 329 ; and see Erwin v. Olmsted, 7 Ibid. 229.) The rule allowing defendants in ejectment, in a suit against them for mesne profits, to retain, in diminution of the recovery, the value of permanent improvements made in good faith, does not trench* at all upon this principle. (Jackson v. Loomis, 4 Cowen, 168; Van Alen v. Rogers, 1 John. Cas. 281.) That action is one for damages administered on equitable principles, and justly limited to the injury actually sustained.

We perceive no ground upon which the plaintiff can maintain her suit, that will not give a like remedy for all permanent valuable erections made in good faith,- by all persons on lands-which they do not own. It was argued that the fact of there having formerly been a partition wall, (which we will call a party wall,) gives the right to have it continued for all time to come. To test this argument fairly, we will assume what is not proved, but may, perhaps, be fairly inferred, that the old wajl was built by the mutual agreement; and at the joint expense, of the then proprietors of the two lots. It is not disputed that each proprietor remained the owner in severalty of the ground-on which half of the wall rested, and of course each owned in severalty one half of the wall. Neither party had a right to pull down the wall without the other’s consent; and to that extent, the agreement upon which it was erected controlled the exclusive dominion which each would otherwise have had over the half of the wall, as well as over the soil on which it stood.The case of Campbell v. Mesier, it may be said, is an authority that each was bound to keep the wall good on its falling into decay; but that case proceeded upon the footing that each had an equal interest in the party wall, of the same nature as that of tenants in common,’ and the fact here is clearly otherwise.

The parties being confessedly restrained from destroying the wall without mutual consent, how is it when the wall has been -destroyed by the elements? The lands on each side are vacant. The agreement upon which the party wall was built related to that wall only. There was no agreement to build a second wall, or to build houses a second time, in the event that the original wall, and the houses which it supported, should be destroyed. Neither party, perhaps, thought of such an event. If they had, it by no means follows they would at that time have stipulated for a second joint wall. It might well have occurred to them, that if the buildings were destroyed, one or the other might not wish to rebuild; or that one might desire to erect a very strong warehouse for heavy goods, requiring thick walls, and the other a private dwelling, with a wall only half as thick. But without pursuing the views which parties may well be supposed to entertain, on their attention being called to the event of a total destruction of the building they are about to erect on a party wall, it suffices to say, that when two owners of adjoining city lots unite in building two stores with a party wall, we have no right to infer, from that act, an agreement binding upon them and their heirs and assigns. 'to the end of time, to erect another like party wall at their mutual expense, when that one is casually destroyed, and so on, as often as the new one shares the same fate.

Suppose in this case that the foreclosure of Duryee’s mortgages had terminated, and the defendant had purchased the Duryee lot, before the plaintiff commenced rebuilding her store. If the doctrine contended for in her behalf be correct, she could have compelled the defendant to join in building a new party wall, or on his refusal, built it herself, and recovered from, him half the expense. Suppose the defendant had said, on being requested to join in the party wall, I bought this lot at a public sale, without notice of any such right as you claim, and my recorded title shows nothing of the kind. Would not this have been a conclusive answer to the request ? Suppose further, that on the plaintiff’s assuming to build the new party wall, the defendant had forbidden her placing any part of it on his land. Could he not have maintained trespass every day against her workmen while building it, and when finished, could he not by an ejectment have compelled her to take it down ? It seems to us these questions must be answered in the affirmative, and that the result overthrows entirely the claim of right based upon the former party wall.

But it is said the defendant made use of the new wall when he built on his lot, and thus ratifiéd it as a party wall; and' it will be unjust to permit him to have the benefit of it without making compensation.

As to the injustice alleged, it is very well answered that the defendant bought this lot at a judicial sale; and, so far as we know, paid for it all that it was worth, including the half wall then standing upon it, and a judgment in this suit compelling him to pay the plaintiff for the same half, will make him pay for it twice. But whether that be the result of our decision, of it have the effect to give him the half of the wall for nothing, it cannot change the rule of law which governs the case. )

Then what is the effect of his using the party wall ? He found it on his land, on taking possession. He wanted to build. Was he to tear it down, or insist on the plaintiff’s removing the half wall, so that he could occupy his whole land ? This he might have done, (Wigford v. Gill, Cro. Eliz. 269,) to her great injury, and with probably no advantage to himself. Or was he not entirely at liberty to use as his own, an erection on the land he had bought, without subjecting himself to pay for work done without his request or knowledge. We think he was. We do not see how the defendant is liable to pay for half of this wall, because he used it, any more than he would have been liable, if the Duryees had rebuilt before he bought, and had put their beams into the wall, without paying the plaintiff for it. Yet the proposition would be at once scouted, that the purchaser of a house in this city, having paid to the ■owner the price, in good faith and without notice, would be liable to the owner of an adjoining house, for the unpaid half of the cost of the party wall which separated the two tenements.

We think we have shown that this case is not governed by Campbell v. Mesier, whether regarded as arising between the mortgagees of Duryee’s lot and the plaintiff, or between her and the defendant. We will next consider the plaintiff’s point, that successive owners of city lots, situated as these were, are bound to rebuild party walls when destroyed, because of an equitable liability founded on a duty arising from the fact that the parties are at least quasi tenants in common of such party walls. This idea of quasi tenancy in common comes from the civil law, and we think has no foothold in our law. It is true, we find two cases in England, in which it was held that coim mon user of a wall separating adjoining houses belonging to different owners, is prima facie evidence, that the wall and the land on which it stands belong to the owners of those houses in equal moieties, not as quasi, but as actual tenants in common. (Wiltshire v. Sidford, 1 Man. & R. 404; Cubitt v. Porter, 8 Barn. & Cr. 257.)

But it was decided in Matt v. Hawkins, 5 Taunt. 20, that although a party wall be erected at the joint expense of the two proprietors of the lots on either side, one half of the thickness of it standing on the land of each, they are not therefore tenants in common of the wall or of the land on which it stands. The property in the wall in-such a case, follows the property of the land which supports it. This, it should be observed, was in London, after the passage of the building act, 14 Geo. III., ch. 78, which regulates the subject of party walls; and its authority was fully recognized in both the cases in the King’s Bench last cited. (The principle of the decisions is, that while the common user is presumptive evidence of a tenancy in common in the land and wall, that presumption is rebutted by proof of the precise extent of the land originally belonging to each owner, and each is then deemed the exclusive owner of so much of the wall as stands on his own land.) (Gale & Whatley on Ease1 ments, 296.) We also refer to Peyton v. Mayor, &c., of London, 9 B. & Cr. 725.

The Roman law contained numerous refined and minute regulations respecting prsedial servitudes, both rural and urban, which are unknown to the common law; and among the number are most of those respecting party walls. (Digest Lib. 8, Tit. 2, 1. 13, 19, 20, 25, 32, 33, 36, 40.) These are also made the subject of many provisions in the French law. (Code Civil Francais, Liv. 2, Tit. 4.) The second chapter of the code civil, which contains the sections cited by the learned chancellor, in Campbell v. Mesier, is entitled “ Of servitudes established by law,” as distinguished from those derived from the situation of places. Among these positive enactments is one which gives to each joint proprietor the right to place beams in the whole thickness of the wall, within two inches (cinquante-quatre millimetres) of the opposite side, (§ 657,) which is very different from our notions of the use of a party wall. It may well be that sound policy dictates similar legislation in this state, but we do not feel at liberty to import doctrines from the civil law, however benign or equitable, which conflict with established common law principles.

In Pennsylvania, the subject of party walls in the city of Philadelphia, was regulated by statute, one hundred and thirty years ago. (1 Laws of Penn. ch. 242, p. 124, &c.; Act of 1721.) -By that statute, the foundation, breadth, thickness, &c., were to be prescribed by the city surveyors, or regulators; and the same officers determined the' compensation to be paid by the builder on the adjoining lot, on his inserting his beams. These matters were not left to the unregulated judgment of experts and witnesses called by the parties interested, as would be the case in our law, if the plaintiff’s view of it be sustained. The act provided expressly, that the first builder should be reimbursed one moiety of the wall, or of so much of it as the next builder should use; but it was decided in Ingles v. Bringhurst, 1 Dali. 341, that the first builder had no lien for this reimbursement, upon the adjoining land; and that it was only a personal charge against the next builder.

The provision in the act of 1813, and the ordinances of the common council of the city of New York under the same, to which we w.ere referred by the plaintiff’s counsel, do not apply to party walls. They relate to walls and fences separating inclosures. The statute itself speaks of fences only. (2 R. L. 134, § 20; Corporation Ordinances, 1845, ch. 43.)

Upon the whole, we are clear that the plaintiff is not entitled to recover, and her bill must be dismissed with costs.