Joy v. Boston Penny Savings Bank

115 Mass. 60, 1874 Mass. LEXIS 149

Opinion

Wells, J.

By his contract with Johnson, and subsequent erection of a wall upon the division line, Currier acquired no interest in the adjoining land, and retained no title in that part of the wall which extended beyond his own line. He could not hold it as realty, because he had nothing but a simple contract, which could have no greater force in law than as a license ; nor as personalty, because, by the terms of the agreement under which he built the wall, it was not removable, but intended to become permanent and annexed to each lot as real property. The plaintiff, therefore, by acquiring Currier’s interest in the land, acquired no interest in that part of the division wall which rested upon the adjoining lot. Even if the defendant, by reason of the clause in the deeds by which its title was derived referring to the contract, and by the use of the wall, might be held chargeable for the cost of the half so used, there is no privity of contract or estate which will enable the plaintiff to recover it in an action at law. The contract was merely a personal one with Currier. The right to enforce it would not pass with the land as an appurtenance, and there is nothing in Currier’s deed to show an intent that it should pass ; nor is such a contract assignable at law.

The case differs essentially from Maine v. Cumston, 98 Mass. 817, and Standish v. Lawrence, 111 Mass. 111. The plaintiff shows no right to recover, and the judgment for the defendant is

Affirmed.