PARTY WALL.

[Franklin Circuit Court,

January Term, 1891.]

Shauck, Shearer and Stewart, JJ.

#### EDWARD T. MITHOFF v. JOHN R. HUGHES AND EVAN JONES.

Agreement for, may be Enforced Against Purchaser with Notice who Uses.

A contract in writing entered into between vendor and purchaser of real estate contemporaneously with the deed of conveyance, whereby the vendor agrees on behalf of himself, his heirs and assigns that the purchaser may erect a party wall, half on the land conveyed and half on adjoining premises of the vendor, and that a part of the expense of constructing it shall be paid by the owners of the latter premises when they use the wall, may be enforced against one who, with notice of the contract, purchases the latter premises and uses the wall.

Error to the Court of Common Pleas of Franklin county.

Petition in error praying for the reversal of the judgment of the court of common pleas for alleged error in sustaining a demurrer to the amended petition.

The averments of the amended petition are, in substance, as follows: that on or about April 3, 1871, Andrew Culbertson, and others, owned as tenants in common the south half of in-lot No. 291, and the north half in-lot No. 290, in the city of Columbus, the said half lots adjoining each other; that on that day they sold and conveyed to the plaintiff the said north half of lot 290, executing to him upon the same day the following instrument:

( “Columbus, O., April 3, 1871.

( “In consideration of the benefits therefrom to accrue to us and of the purchase by Edward T. Mithoff of the north half of in-lot number two hundred and ninety in the city of Columbus, Franklin county, Ohio, from us, we hereby agree for ourselves, our heirs and assigns, forever as owners of the south half of in-lot numbered two hundred and ninety-one in said city, do hereby agree and stipulate that he may cause to be erected between us a party wall of thirteen inches thickness one-half on our premises, and upon the use thereof by us or our assigns or heirs, we agree that one-half the price thereof shall be paid by us.” * * *

This instrument was signed by all the persons then interested in said premises. It was not sealed, acknowledged or recorded. The conveyance to Mithoff was made through one John Miller, and the deed to him, in addition to the usual covenants of warranty, contained the following: “And we also agree with said John Miller, his heirs and assigns, and the heirs and assigns of Edward T. Mithoff that a party wall of twelve inches thickness may be erected between these premises and the south half of Lot No. 291, which we own, we agreeing to pay one-half of said wall when we use it.” The deed from Miller to Mithoff contained the following: “And we also consent to the erection of a party wall between these premises, and the south half of lot 291 of twelve inches in thickness.”

Upon the execution of the conveyance the plaintiff entered into possession of his premises, and prior to July 1, 1872, erected a party wall upon the line in accordance with the above agreement. The whole cost of the construction of the wall was $917.30.

On January 9, 1872, Andrew Culbertson and others, parties to said agreement, conveyed the south half of lot 291 to said John Miller, who took his conveyance with knowledge of said agreement. On February 21, 1872, Miller conveyed the said south half of lot 291 to the defendant John R. Hughes, who, April 15, 1872, conveyed an undivided half thereof to the defendant Evan W. Jones, both of whom took their conveyances with knowledge of said agreement, and of the erection of said party wall by the plaintiff at his own expense, and with the expectation that they would pay him one-half of its cost when they should use it The defendants afterwards erected a building upon their portion of lot 291 using said party wall as one side thereof, and placing in and upon it their joists and other supports. The plaintiff, thereupon, demanded payment of one-half the cost of constructing the wall, which the defendants refused.

SHAUCK, J.

In support of the judgment below, it is contended that the contract of April 3,1871, was personal and bound only those who signed it to pay for one half of the ■party wall when it should be used by the owners of the lot last sold by them. As ithis promise was not embraced in the deed, nor executed under seal, it is not techmically a covenant running with the land. But as it was executed contempora■neously with the deed, and by the owners of both lots,its effect must be determined *63by other considerations. Platt v. Eggleston, 20 O. S., 414. Whether a covenant is personal or runs with the land, cannot always be determined by the language employed, although it may often be. The language here used shows an evident intention on the part of the covenantors to bind not only themselves, but also those who should succeed them in title, and to charge those who should use the party wall, with the payment of one-half its cost. The real question is, whether the relations of the parties to the subject of the contract are such as to give effect to that intention. Upon this question the decided cases are neither clear nor consistent.

Geo. B. Okey, for plaintiff in error

Col. T. T. Holmes, contra.

In Scott v. McMillen, 76 N. Y. 141, which related to a contract to contribute to the erection of a party wall, two propositions are held: (1) That the right to exact payment does not pass to the grantee of the promisee, and (2) That the obligation to pay for one-half of the wall when it may be used does not rest upon the grantee of the promisor. But the contract there considered was between parties who already owned the adjoining lots, and the relation of vendor and purchaser did not exist. The suit was between the respective grantees of the contracting parties, and the conclusions announced seem to rest upon the consideration that there was no privity of either contract or title. We must either distinguish the case for that reason or regard its authority as weakened by Platt v. Eggleston, supra, which holds that payment in such case may be exacted by the grantee of the promisee.

While the court was there called upon to determine by whom payment might be demanded, we are unable, in view of the language used in this covenant, to see how it can be said to be personal only as to the performance of the duty, and yet run with the land as to the right to exact performance. It is in fact and in contemplation of the parties a covenant for the benefit of both parcels of land, and affecting in a substantial way the mode of their enjoyment by their respective owners, and the obligation to pay the appropriate consideration was by terms of the covenant placed upon those who should succeed to the promisor’s title and enjoy the reserved right of using the wall. The defendant succeeded to that title, and exercised that right with knowledge of the terms upon which it was to 'be enjoyed. These considerations seem to overcome the technical objections made to the petition; Easter v. Railroad, 14 O. S. 48; Huston v. Railroad, O. S. 235; Burlock v. Peck, 2 Duer, 90.

Equitable considerations require us to hold that the ‘defendants are liable. In view of the contract made, and their knowledge of its terms, they should not be permitted to enjoy without compensation the wall erected by the plaintiff for their common benefit with the just expectation that he would be reimbursed tcthe extent now claimed.

Wickersham v. Orr, 9 I., 253, is direct authority for holding that the defendants are liable. However poorly that case may be supported by the authorities cit'ed in the opinion, it is well sustained by.the considerations upon which it proceeds.

The judgment will be reversed, and the demurrer overruled.