
    JOHN H. MOHR, Plaintiff and Respondent, v. ALBERT O. PARMELEE, Defendant and Appellant.
    PARTY WALL, WHEN BREACH OF COVENANT AGAINST INCUMBRANCES.—DAMAGES.—WHEN COVENANTS RUN WITH LAND.
    A party wall standing equally upon the land of adjoining proprietors, and whose central line is throughout coincident with the line of division between their respective premises, constitutes no incumbrance upon or defect in the title of either, such as will relieve a purchaser from his contract, or entitle him to compensation, notwithstanding that the owner may have covenanted with him to convey by good title in fee simple, free of incumbrance (Hendricks i>. Stark, 37 JST. T. 106). But a party wall, as in this case, wholly on one of two contiguous lots of land, yet subject to appropriation and use for all the purposes of a party wall by the proprietor of the other, whether for a term or in perpetuity, and whether the privilege was given by grant, as in this case, or by license, covenant, or prescription, constitutes an incumbrance upon, or a defect in the title of the lot on which it stands (Giles «. Dugro, 1 Duer, 331).
    When the title is so incumbered by reason of the prior grant of such an easement, a right of action immediately accrues on the covenant against incumbrances, by reason of the breach thereof. Whether the covenantee had or had not notice or knowledge of the existence of the incumbrances, is immaterial to his right of action, or to the question of damages.
    More than nominal damages may be recovered in such case. The rule as to damages laid down in Giles a. Dugro {supra), approved.
    The criterion for determining whether a covenant runs with the land, is the intention of the parties, and if the covenants be of such a nature that they can run with the land, and the deed expresses such an intent, they bind, not only the original parties, but the subsequent owners of the respective premises (Per Dwight, 0., Brown ». McKee, 57 W. 7 684).
    
      
      Decided, January 14, 1878.
    Before Curtis, Ch. J., and Sanford, J.
    Appeal by defendant from a judgment entered in favor of plaintiff upon the verdict of a jury.
    The action was brought to recover damages for the breach of a covenant against incumbrances, contained in a deed from defendant to plaintiff, bearing date January 17, 1870, and purporting to convey to the plaintiff, in fee, certain premises in the city of New York, consisting of a lot of land with the dwelling-house thereon, said lot being twenty-one feet and eight inches wide, by ninety-eight feet and nine inches deep.
    The complaint alleges that on January 17, 1870, by deed bearing date on that day, and duly executed under seal, the defendant, in consideration of $22,000, conveyed said premises, house and lot, to the plaintiff. That such deed contained, among other covenants, the following: “That the same, [meaning said premises,] now are free, clear, discharged and unincumbered of and from all former and other grants, titles, charges, estates, .... and incumbrances of what nature and kind soever.” That on December 29, 1852, one Alfred North, from and under whom the defendant derived title, and who then owned said premises in fee, executed and delivered to Joseph Walker j who was then the owner, in fee, of the lot of land next adjoining, an instrument in writing under, seal whereof a copy is annexed to and made part of the complaint. Such instrument recites that North owns in fee the lot of land and dwelling-house first above mentioned, and that Walker is the owner in fee of the lot adjoining, and is about to erect thereon a dwelling-house. Thereupon, in consideration of the premises and of $300 paid to him by Walker, North, for himself, his heirs, executors, administrators and assigns, covenants, grants, promises and agrees, to and with the said Walker, his heirs, executors, &c., that he and they shall and may in the erection of such dwelling-house, make use of the northwesterly wall of the dwelling-house of said North or as such thereof as said Walker, his heirs, &c., may desire, to the extent of four inches in depth, as a party wall, and as a side wall of said dwelling-house proposed to be erected, to be used and continued as such party wall and such side wall forever. It was further mutually covenanted and agreed by and between the parties to such agreement, that the same should be perpetual, and should at all times be continued as a covenant running with the land ; but should not be deemed, construed or implied, as vesting in Walker, his heirs, &c., and assigns, any legal right, title or interest of, in, or to the ground or soil, or any part thereof, on which the said party wall now stands, but that the whole thereof should remain and continue in the said Alfred North, his heirs, executors, administrators, or assigns forever, in the same manner, and to the same extent as if such agreement had not been executed, except only as to the perpetual appropriation, use and enjoyment and easement of the said party wall, as a party wall, by and between the said two lots of ground and the house erected and to be erected thereon.
    The complaint further avers that after the execution of such agreement, Walker availed himself of the rights, privileges, and easements theréby granted, and built a house on his lot, using, in the construction thereof, the northwesterly wall of North’s house as the southeasterly wall of his, said Walker’s, house. That at the time of his purchase, the,plaintiff was wholly ignorant of such agreement and easement, and that said easement is a damage and injury to the extent of $2,000.
    
      The answer puts in issue the allegation of the complaint with respect to the plaintiff’s knowledge of the said instrument and easement, and the damage or injury thereby occasioned, and avers that such instrument was recorded in the office of the register of the city and county of New York, on August 9, 1873 ; and that plaintiff, at the time when he bought, had full notice and knowledge thereof.
    Some evidence was adduced on the trial with respect to the question as to whether the plaintiff had actual notice of the existence of such agreement, or of the appropriation and use of the said wall, as a party wall, and as the side wall of the adjoining building; but the court held such evidence to be immaterial, and that the only question for the jury was that relating to damages.
    Defendant’s counsel requested the court to charge:
    (1.) That the record of the agreement, at the time of plaintiff’s purchase, was notice to plaintiff of the incumbrance, and must be considered in mitigation of damages.
    (2.) That no interest in the land on which the wall is built is conveyed by the agreement.
    (3.) That the rules governing the measure of damages for breach of covenant against incumbrances, where no actual damage is shown, is nominal, and no damage can be inferred.
    (4.) That the damage in this case is not an actual damage in contemplation of law.
    (5.) That a party wall is not, as matter of fact, an injury to land.
    The court submitted to the jury the question whether or not the plaintiff had sustained any damage of a substantial character, charging that if not, only a nominal sum was recoverable ; but, that if the plaintiff had sustained real substantial damages, the amount thereof would b'e equivalent to the diminution in value, on January 17, 1870, of the property purchased by reason of the existence of the incumbrance, together with interest thereon from that date.
    Exception was taken to the refusal of the cotirfc to charge as requested, as to notice of the agreement and the effect thereof, also as to the measure of damages, and generally as to the several requests preferred.
    No part of the charge, as delivered, was made the subject of objection or exception.
    The jury found for the plaintiff.
    A motion for a new trial on the judge’s minutes was made and denied.
    The defendant appealed from the judgment entered on the verdict, but not from the order denying the motion for a new trial..
    
      R. H. Bowne, attorney, and S. P. Nash, of counsel, for appellant, among other things, urged :
    —I. The agreement did not create an incumbrance upon the premises granted, and plaintiff therefore showed no breach of the covenant (Harsha v. Reid, 45 N. Y. 415; Cole v. Hughes, 54 Id. 444; Col. College v. Lynch, 39 Super. Ct. 374). The agreement was not contained in any conveyance of the land, but was a purely personal agreement between the parties to it, and did not run with the land. The whole arrangement, therefore, lay in covenant, not in grant. Plaintiff not having himself covenanted, and not being assignee of North’s covenant, is not bound by it, and can compél the owner of the adjoining house to remove the beams, whose remedy for the consequent damages would be against North and his representatives (2 Washb. R. P. 262-3; 4 Kent, 472-3).
    II. The wall had been used by the insertion of the beams of the adjoining house, before the plaintiff bought and took possession. He had not been disturbed in his occupancy; had .paid nothing to discharge the incumbrance, and suffered no actual damage. He was, therefore, entitled to recover only nominal damages. The case of Giles v. Dugro (1 Duer, 331), will be cited as adverse to both the foregoing positions, but in that case the parties to the party wall agreement acquired an interest in the land, which, in the case at bar, was expressly excluded by the agreement.
    III. The allowance of interest was at all events erroneous. The plaintiff was in possession ; had never paid out anything to remove the incumbrance, and, therefore, was not entitled to interest (Grant v. Talman, 20 N. Y. 191, 196).
    
      Barlow & Olney, attorneys, and Francis C. Barlow, of counsel, for respondent, among other things, urged :
    —I. A party wall proper has been held by the court of appeals to be no incumbrance or injury (See Hendricks v. Stark, 37 N. Y. 106). The reason of this is, that the wall being equally on each lot, the injury to each is exactly counter-balanced by the benefit. But where the wall is all on one lot, without any gain from the neighboring lot, or where the whole expense is borne by one lot, and the owner of the latter can never control his own premises, or tear down his wall, without the consent of his neighbor, the case is different, and it is an injury. This point was decided by this court in Giles v. Dugro (1 Duer, 331, approved in Lamb v. Danforth, 59 Me. 324).
    II. To the point that the record of the agreement was notice to the plaintiff of the incumbrance, and that such knowledge by him at the time of the purchase constituted a defense, there are two conclusive answers:—First. No actual notice was proved, and the record was not constructive notice. If an instrument relating to real estate is not recorded, a subsequent purchaser “in good faith,” i. e., not having actual notice, is not bound by it (See 3 R. S. 5th Ed. p. 45, § 1). All that is meant by this is that as between two purchasers, a recorded instrument is notice; but this is only as between twopwrchasers. That is to say, Walker having recorded this agreement, the defendant, who subsequently bought from North, was bound by it against Walker. And so, also, the plaintiff was bound by it as against Walker. The recording act {supra) does not say a word about the record being notice to any one. That the agreement was recorded, protected Walker against the defendant, and also against the plaintiff, but it had no effect as between the defendant and his grantee. This is held in Roberts v. Levy (3 Abb. N. S. 311), which case, however, wrongly holds that notice, if proved, is any defense to an action of this kind. Secondly. It is well settled that notice of an incumbrance, if proved, is no defense. Sometimes the covenant against incumbrances is inserted for the very reason that the grantee does know of the incumbrance, and wishes to guard against it (See Suydam v. Jones, 10 Wend. 181; Harlow v. Thomas, 15 Pick. 66; Townsend v. Weld, 8 Mass. 146; Long v. Moler, 5 Ohio St. 271; Rawle on Covenants, 4th Ed. pp. 116, 117). The rule is the same as to a warranty of title of chattels (See Dresser v. Ainsworth, 9 Barb. 619).
    III. The question “whatwas the value diminished by the incumbrance,” is the exact form approved in Wetherbee v. Bennett, 2 Allen, 438; and see Harlow v. Thomas, 15 Pick. 66, and at p. 69. It is the proportion in value and not in quantity between the land to which title fails, and the whole, which is the measure of damages.
    IV. The rule may be cited which provides that damages cannot be recovered for incumbrances unless they have been paid or removed. But this applies only to such incumbrances as judgments, mortgages or dower rights, which have a money value, or which, it is to be presumed, can be removed by the payment of money. But this rule does not apply to easements, or to incumbrances of a permanent character, which cannot be removed as a matter of right. As to the distinction just mentioned, see Harlow v. Thomas, 15 Pick, 66, and at p. 69; 3 Washburn on Real Property [4th ed.], page 495 [top paging], and cases cited, Id., pp. 459 and 460, top paging ; also Giles v. Dugro, 1 Duer, at foot of page 335.
    V. We have seen in Giles v. Dugro that this was a partial eviction or failure of title. The plaintiff is considered as never having had possession of this wall. How the rule in cases of eviction, or failure of title, as to interest, is this. If the consideration paid was $22,000, and the purchaser never acquired possession, then of course the measure of damages is the $22,000, and interest from the time of its payment. If the purchaser still holds possession, but the title has failed, or if, after holding possession for a period, he has been evicted, the rule is that the measure of damages is the consideration money, with interest for six years from the date of its payment, provided he has occupied so long. After six years, no interest is allowed, if he has been in possession (See Caulkins v. Harris, 9 Johnson, 324; Pitcher v. Livingston, 4 Id. 10; Guthrie v. Pugsley, 12 Id. 126). The rule as to covenants against incumbrances is stated in Pitcher v. Livingston, supra, at middle of p. 10.
    VI That interest is allowable, see Cornell v. Jackson, 3 Cushing, 510.
    VII. There was no ground for the motion for a new trial on the minutes, and it was properly denied. McCool, the defendant’s own witness, put the damages at $1,000. The method by which some of the witnesses got at their estimate was somewhat fantastic, but Bockell made it $2,500, and Wangler made it $3,500. This amply sustains the verdict. And this objection cannot be made anyway, there being no appeal from an order denying a new trial on the minutes (see Matthews v. Meyberg, 63 N. Y. 656).
   By the Court.—Sanford, J.

—The points made by defendant’s counsel, upon the argument, as constituting grounds for a reversal of the judgment, are:

(1.) That the agreement between North and Walkeconstituted no incumbrance upon the premises granted, and, therefore, the plaintiff showed no breach.

(2.) That no actual damage had been shown, and only nominal damages were, therefore, recoverable.

(3.) That if entitled to recover more than nominal damages the plaintiff was not entitled to the diminution in value of the property at the time of his purchase, by reason of the existence of the incumbrance, as charged by the court, but only to such sum as would bear to the actual consideration paid for the conveyance, the same ratio which the portion of the premises as to which title has failed, bears to the whole property.

(5.) That the allowance of interest was at all events erroneous.

A party wall standing equally upon the land of adjoining proprietors, and whose central line is, throughout, coincident with the line of division between their respective premises, constitutes no incumbrance upon, or defect in, the title of either, such as will relieve a purchaser from his contract or entitle him to compensation, notwithstanding that the owner may have covenanted with him to convey by good title, in fee simple, free of incumbrance (Hendricks v. Stark, 37 N. Y. 106). In such case the detriment sustained by each tenement, in becoming servient to the other, is compensated by the benefit it derives from having the other made equally servient to it.

But a party wall wholly on one of two contiguous lots of land, yet subject to appropriation and use for all the purposes of a party wall by the proprietor of the other, constitutes an incumbrance upon or defect in the title of the lot on which it stands, for the reason that it restricts the use, and impairs the enjoyment thereof, without impartiñg any corresponding benefit or advantage thereto. In the one case each of the two tenements is at the same time dominant over and servient to the other, in equal degree. There is entire reciprocity in their mutual relation. In the other case no such reciprocity exists. The tenement that sustains and supports the wall is merely servient. That to which only its use appertains is wholly dominant. The servitude that attaches in the one case is an incumbrance which impairs the estate. The domination acquired in the other is a privilege that enlarges it (Giles v. Dugro, 1 Duer, 331). The irrevocable privilege of using a wall as a party, wall, whether for a term or in perpetuity, and whether acquired by grant, license, covenant, or prescription, constitutes an easement, and is, consequently, an incumbrance. Such a privilege was conferred and created by the deed between North and Walker, annexed to the complaint. That deed, in terms, grants to Walker, his heirs and assigns, precisely such a privilege. He availed of it for the benefit of the premises then owned by him. Thereby and by virtue of the terms of the grant it became appurtenant to those premises, and thus passed under their conveyance. It is insisted, on the part of the defendant, that it was expressly provided by the terms of the grant, that nothing therein contained should be construed as vesting in Walker, his heirs or assigns, any legal right, title, or interest in the ground or soil, or any part thereof, on which the said party wall now stands.

And it was argued, that by reason of this proviso the covenant of the grantor was a mere personal covenant, and did not ran with the land. But the premise from which this conclusion is deduced is incorrectly stated. It is true that a covenant, to the effect stated, is inserted in the deed, but this covenant is itself qualified by an exception which is fatal to the inference. It is mutually covenanted that Walker and his heirs shall acquire no interest in the soil, “ except only as to the perpetual appropriation, use, enjoyment, and easement, of the said party wall as a party wall, by and between the said two lots of ground and the house erected and to be erected thereon.” This language can only be construed as expressing an intent to vest in Walker, his heirs and assigns, an interest in the land, to the extent specified in the exception ; that is to say, to vest in him and them a perpetual easement on and over the soil occupied by the wall. So far from frustrating the declared intent of the parties, that the agreement between them should be perpetuated and at all times “continued as a covenant running with the land,” this language confirms and corroborates such intent and indicates the purpose to create a servitude and easement “by and between the said two lots of ground.” The criterion for determining whether a covenant runs with the land is the intention of the parties ; and if the covenants be of such a nature that they can run with the land, and the deed expresses such an intent, they bind not only the original parties but the subsequent owners of the respective premises (Per Dwight, C., Brown v. McKee, 57 N. Y. 684). The plaintiff’s title having been incumbered at the date of the conveyance to him by the existence of an easement incapable of removal at his option, by any payment or tender, or having failed pro tanto, by reason of the prior grant of such easement, a right of action immediately accrued to him upon the defendant’s covenant, by reason of the breach thereof.

It is quite immaterial to the plaintiff’s right of action, or to the question of damages, that he had or had not notice of the existence of the incumbrance. If aware of it, he had the option of rejecting the deed or of accepting it and relying on the defendant’s covenant. Had the premises been incumbered by the lien of a tax, a judgment, or a mortgage, it surely would not be pretended, that the defendant’s liability therefor would be discharged by plaintiff’s knowledge of the fact. This point, however, was not presented by the appellant on the argument, either orally or otherwise, and is deemed to have been abandoned.

There was evidence tending to show actual and substantial damage from the date of his purchase. The plaintiff was excluded from the use and occupancy of the wall of his dwelling, in so far as it was used as a party wall or as a side wall of the dwelling-house erected on the adjoining land. The judge submitted to the jury the question whether, by reason of such exclusion, the plaintiff did or did not sustain damages of a substantial character. Ho exception was taken to the charge, and no appeal having been taken from the order denying defendant’s motion for a new trial, we cannot consider questions of fact. The case of Giles ■». Dugro, above cited, is authority for the proposition that more than nominal damages are recoverable.

If the rule of damages laid down by the learned judge in his charge is not precisely in accordance with that prescribed in the case of Giles v. Dugro (ut supra), the case presents no exception which raises the question of its accuracy. The charge as delivered was not excepted to. Exception was taken to the refusal of the judge to charge as requested, as to the measure of damages, but the defendant’s requests contained no reference to the rule properly applicable to the case. They simply called for an instruction to the effect that nominal damages only were recoverable. In withholding such instruction, no error was committed.- The rule now contended for by defendant is much more objectionable than that laid down by the court, if indeed the latter be objectionable at all. It is insisted that inasmuch as the whole consideration for the conveyance of twenty-one feet and eight inches was $22,000 while the total failure of title extended only to four inches, the damage should have been $340, instead of $1,350 as awarded by the jury.

In other words, that the damages are limited to a sum which bears to the whole consideration of the conveyance, the same ratio which the size of the part of the premises as to which there is a failure of title bears to the size of the entire tract attempted to be conveyed.

This rule assumes that every separate part of a tract of land is of the same value Vith every other part of the same dimensions, and that the value of the whole is equivalent to the aggregate of the values of as many separate parts as the whole is divisible into. The assumption is fallacious and incorrect.

A parcel of arable land may be worth far more than all the rest of a farm of which it constitutes but a small part, and the value of a city lot, twenty or more feet wide, may be much greater in proportion to its width than a narrow strip of the same premises.

Had objection been made to the charge of the court in this regard, or had the attention of the learned judge been directed to the true rule by a proper request, it is reasonable to suppose that there would have been no ground for the imputation of error. As it is, any adverse criticism is disarmed by the absence of objection or exception, and of any suggestion by counsel as to the measure of damage properly applicable to the case. The variance between the charge and the rule as laid down in Giles v. Dugro, if any there be, is too slight to be regarded under all the circumstances of the case. The same observations apply to the objection .that interest is not recoverable. The question was not raised at the trial, and the ruling of the court with respect to it is not now under review.

Various exceptions taken to the ruling of the court upon questions relating to evidence are effectually disposed of by the views above expressed. The only grounds for reversal urged on the argument, or in the printed points of the counsel for the appellant, are those which have constituted the subject of this discussion. All others are deemed to have been waived or abandoned.

The judgment should be affirmed, with costs of the appeal.

Curtis, Ch. J., concurred.  