
    Hart and wife against Kucher,
    
      Friday, December 18.
    The right in the first builder to reimbursement, for the expense of a party-wall, is a personal right against the second builder, and on payment thereof by the owner of the adjoining lot to the first builder, the claim of the latter is at an end, and a purchaser from him cannot afterwards recover it when a second building is erected, although there is no instrument on record nor notice of such payment.
    In Error.
    ERROR to the District Court for the city and county of Philadelphia.
    
    Case stated in the nature of a special verdict, on which the Court below gave judgment for the defendant.
    The question to be decided in this case, depended on the • r t r , . ,, _ . , construction of the act for regulating party-walls, &c., m the city of Philadelphia, passed 24th February, 1721. The state of the case was this. William Garrigues, under whom the plaintiffs claimed, was the owner of a house and lot in this city; the party-wall of which extended over the line of the adjoining lot, owned by Hugh Roberts. On the 29th November, 1789, Roberts paid Garrigues a sum of money, which was received in full satisfaction for Roberts’s moiety of the party-wall. Garrigues gave Roberts, a receipt in writing, bur neither the receipt, nor any other writing respecting the party-wall, were put on record. In the year 1815, the defendant Mrs. Kucher, being seised in fee, by virtue of sundry mesne 
      conveyances of the lot formerly owned by Roberts, erected a brick building on it, in which she made use of the said party wall. In the same year, Hugh Roberts, in consideration of 150 dollars, paid by the defendant, acknowledged. himself “ fully satisfied for the said party-wall, which he had purchased of William Garrigues.” The plaintiffs (who claimed by a deed, dated in 1798, from one who held, under several mesne conveyances, from Garrigues,) alleging that they had no notice of the payment by Roberts to Garrigues, now contended, that the defendant, who first made use of the party-wall, was responsible to them for a moiety of its value.
    
      Scott, for the plaintiff,
    argued, that the owner of a party-wall could not dispose of his interest in it by writing not recorded, so as to. bind a subsequent purchaser from himself without notice. The act of 24th February, 1721, sect. 2., is express, that “ the first builder, shall be reimbursed one moiety of the charge of such party-wall, or for so much thereof as the next builder shall have occasion to make use of, before such builder shall any ways use or break into the said wall.” The right to reimbursement is a hereditament, and passes to heirs and assigns. A purchaser of it, gains an interest in real estate, and therefore the instrument that passes it, should be recorded, or notice thereof given to purchasers of the estate. It is against equity, as well as against the statute for the prevention of frauds and perjuries, that one should acquire an interest in land, without notice to purchasers. 2 Vern. 384. 634. 2 Atk. 109. 3 Atk. 302. Bac. Ab. tit. Mortgage, G. No. 3. He further contended, that a right to re-receive money, when a party-wall should be built, was not assignable, being a mere possibility. 1 Com. Dig. 554.
    
      E. S. Sergeant, contra.
    The right to reimbursement for one half the expense of a party-wall, is personal property. The right of building, is a different thing. It was decided in Ingles v. Bringhurst,
      
       that the right to receive reimbursement, is not a lien on the lot adjoining. It may be recovered in indebitatus assumpsit. The deeds of conveyance of lots built upon, convey no more than the lot, exclusive of that part of the wall, which is on a neighbour’s lot. As to the act of assembly, its provisions are in favour of “ the first builder” not his heirs and assigns.
    
      
      
         1 Dall. 341.
    
   The opinion of the Court was delivered by

Tilghman C. J.

The act of assembly, which was intended to promote the convenience of builders in general, forbids the erection of any party-wall, until the public regulators set out the foundation, and regulate the thickness of it, and directs that the foundation shall be laid equally upon the lands of the persons between whom the said party-wall is to be made, “ and the first builder, shall be reimbursed one moiety of the charge of such party-wall, or for so much thereof as the next builder shall have occasion to make use of, before such next builder shall any ways use or break into the said wall.” In the case before us, the law has been complied with. , A moiety of the cost of the party-wall, was paid to William Garrigues the first builder, long before any use of the wall was made by the defendant. The plaintiffs remain in the undisturbed possession of their own house. On what ground then do they rest their claim against the defendant? They seem to suppose, that, the right of the first builder, to a reimbursement of one half the expense of building the wall, was a kind of hereditament which could not pass without a conveyance recorded according to law. But it is not of the nature, of an hereditament. It was determined in the ease of Ingles v. Bringhurst, (1 Dall. 341,) to be a personal charge against the second builder, for which the first builder might support an action of assumpsit; but not to be a lien on the land; and that no action could be supported against the assignee of the second builder. The rights of both parties are founded on the act of assembly, and not upon any deed or conveyance. ' The first builder is authorised to place half the wall on his neighbour’s land; and his neighbour in return, may make use of the wall in erecting a building of his own, provided one half the cost be first paid. The first builder acquires no right to his neighbour’s soil, nor is it necessary, that he should execute any kind of release or conveyance, when he receives a reimbursement of one half the cost of the wall. It may be, and no doubt often is the case, that the wall is originally built at the equal cost of both parties ; in that case, no receipt or acknowledgment is necessary j it is enough if the second builder prove, that he was originally at one half of the expense. Our recording act, (passed 18th March, 1775,) directs all deeds to be recorded, which concern any lands, tenements, or hereditaments, or where-same may jn any manner be affected, in law or equity. gut it cannot be said, that the land of the defendant is affected in law or equity, by this party-wall, because, the decision of Ingles v. Bringhurst, has settled the law to the contrary. The land is not charged, and the first builder is confined to a personal remedy. There was nothing therefore, on which a conveyance from the first builder could operate. As to any equity in the plaintiffs’ case, arising from the circumstance of their ignorance of the payment made by Roberts to Garrigues, I think there is nothing in it, because the defendant sets up no claim to any part of the house purchased by the plaintiffs. He only rebuts the demand of the plaintiffs, of reimbursement of a sum of money expended by another person on land to which the plaintiffs neither have, nor ever pretended any title; for as to the cost of that moiety of the wall, which is on the plaintiffs’ own land, there is no pretence for any claim of reimbursement. I am of opinion, that the Court below were right in deciding, that the plaintiffs could not recover in this action, and therefore the judgment should be affirmed.

Judgment affirmed.  