Maine v. Cumston

98 Mass. 317

• Court: Massachusetts Supreme Judicial Court
• Decided: November 15, 1867
• Status: Published

Opinion

Bigelow, C. J.

We have no doubt of the liability of the defendant for the cost of the partition wall which he made use of in constructing the house on the lot of land adjoining that of the plaintiff. The property in the whole wall passed to the plaintiff by the deed under which he claims title. So far as it was erected on land which belonged to the city and which the defendant agreed to purchase, it was placed there by consent of the city, the owner of the fee, under an agreement that it should there remain, as part of the house now belonging to the plaintiff, until it was used as a partition wall by the owner of the lot on which it stood. Construing the contract of the parties according to their intent and with reference to the subject matter, it is clear that the rights and obligations of the purchaser of the plaintiff’s lot, and of the city, as to a partition wall which might be erected on the premises under the stipulations contained in the bond and deed from the city, were to belong to and be binding on those who should subsequently become owners or entitled to build on the two adjacent lots on which such partition wall might be built.

The plaintiff, under his deed, which contained an express reference to the terms of the original purchase from the city, had a right to maintain the whole wall as part of his house, until the city or some one claiming title under the city built on the adjacent land and made use of the partition wall or some part of it. When that took place, then the plaintiff’s property in that part of the wall on the adjacent lot ceased, except so far as he might claim a right or easement of support in it as a partition wall, and he became entitled to recover the cost of its erection. He can recover this cost of the defendant, because the latter accepted a bond and agreement of the city which contained an express stipulation that he should pay it whenever he' erected a building on the land on which the wall stood. The doctrine is perfectly well settled, that, when a party accepts a deed-poll or instrument in the nature of a deed-poll, by which he obtains a right or interest in property on condition or with a stipulation that he shall pay a sum of money or perform a certain duty, he becomes thereby bound to pay he money or perform the duty. Not having signed and sealed the deed, he is not liable for breach of covenant; but by accepting the deed he assumes the performance of the condition or stipulation, from which the law will imply a promise on which an action may be maintained. Guild v. Leonard, 18 Pick. 511. Newell v. Hill, 2 Met. 180. Pike v. Brown, 7 Cush. 133.

Judgment for the plaintiff.