
    CUMMINGS’ APPEAL.
    
      Where there has been substantial performance of a contract to purchase real estate, a bill for specific performance will lie after five-years.
    Appeal from Common Pleas No. 4, of Philadelphia county, No. 76, January Term, 1881.
    The facts are given in the report and opinion of the Master as follows:
    HISTORY OF THE CASE.
    In 1869, the plaintiff, Daniel Howard, and the defendant, Michael Cummings, made a written contract with one William J. Rheiner, a builder, to erect for them on Wayne street, Germantown, in the city of Philadelphia, on their adjoining lots a double house of uniform size and material, to be separated by a party wall of nine inches in width on the line dividing the two houses.
    During the period of the erection of the building, the plaintiff, who was living in an adjoining house, had daily opportunities of observing the progress or manner of the construetion, and promised the defendant, who resided some four miles away, to see that the details of the construction were carried out according to the terms of the contract, and told the defendant that the structure was being properly erected, and that the builder was doing splendidly.
    It appears, however, that owing to the washing away by rain of the stakes which had marked out the party wrall, or, from some other cause, the party wall and building were made to encroach upon defendants’ lot four and one-half inches more than they should have done.
    Ignorant of this fact, and under the impression that the building had been properly constructed, the plaintiff and defendant moved into their houses, the defendant taking possession of his in September, 1870; the plaintiff having moved into the adjoining one the previous week.
    Shortly after he began to occupy his dwelling the defendant noticed that the fence was off the line, which had been laid out as a dividing line of the two houses, and finally, by having the lot surveyed again on the 11th of June, 1872, he ascertained that the party wall and building encroached upon his own lot four and one-half inches more than they should have done. He also ascertained that the flues or chimneys were built more upon his side of the party wall than upon the plaintiff’s, thus making his, the defendant’s, rooms smaller than those of the plaintiff.
    Complaining of this state of affairs to the p’aintiff, the latter, saying that he knew nothing of it, referred him to the builder, Mr. Rlieiner, who, he said, would give him satisfaction.
    Obtaining no redress, however, from the plaintiff, the defendant about September, 1872, consulted a member of the bar, P. E. Carroll, Esq., in order to assert his righ'.s.
    Having received from Mr. Carroll a note, in 'which Mr. Cummings’ dispute was mentioned as being in reference to •a disagreement between the two men about the party wall and flues, Mr Howard called at that gentleman’s office. A week or two previously to the date of his going there, the plaintiff asked the defendant to sell to him the four and one-half inches of party wall, which the latter refused to do. Subsequently, however, on the seventh day of September, 1872, the plaintiff and defendant in the presence of the latter’s attorney, and at his office, entered into the agreement under seal, marked in bill as “Exhibit A,” according to which Mr. Cummings, for the consideration of ten dollars, which sum was paid to him. by the plaintiff at the time of its execution, and of the covenant of the plaintiff to build separate flues in his own house, and on his own ground, was to convey to him the strip of land knowm as four and one-half inches of party wall, through which it ran in front and to a point in the rear.
    In May, 1873, the plaintiff caused to be built, in a workmanlike manner, two chimneys, or smoke-flues, in his house, according to the agreement.
    After this, the plaintiff requested the defendant to convey to him the strip of land, the subject of the present controversy, but the latter said he would not do so unti' they sued the builder for the improper construction of the building. As to this point the testimony is conflicting, the defendant alleging that at the time of the written contract of September 7, 1872, there was a verbal agreement between him and the plaintiff, and to be taken as a part of said contract, that the builder was first to be sued by them for his improper construction of the building, before the conveyance was to take place; but that there was certainly some talk by the parties to this action at the time of the execution . of the contract, about suing the-builder, is evident from the testimony of Mr. Carroll, and this is further corroborated by the testimony of the builder, who-says on page 6 of the examiner’s report: “Five years after the buildings were erected, I heard from Mr. Seymour that there was an error in the flues ; Howard told me about it; he told me he was going to sue me ; I never heard from Mr. Cummings about it.”
    The defendant, for the purpose of suing the builder, tried after September 7, 1872. to obtain from Mr. Howard the building contract, marked “Exhibit No. 4,” but the latter having loaned, it to one Flemming, who desired to build a similar kind of a house, and who had mislaid it, did not give it to him.
    In view of the positive denial of the plaintiff, that the suing of the builder was to form a part of the contract of September 7, 1872; and the assertion of the defendant, that he understood that it was to be taken as a portion of it, and of the fact that Mr. Carroll, in whose handwriting the agreement was, and who was at the time acting as the present defendant’s attorney, while knowing that at the time of its execution there was talk about suing the builder, did not remember distinctly that there was any particular sort of agreement about this, the master finds that the parties to the agreement were governed ■by the written contract of September 7, 1872, and by no other; and that at the time of its execution, there was no positive verbal agreement between the parties; that the suing of the builder was to form a part of said contract.
    At the hearing before the master, the cause was fully argued by counsel, both of whom, strange as it may appear, mainly rested their case upon their interpretation of the sixth section •of the Act of April 22, 1856 (Br.’s Purdon’s Dig. p. 930, pi. 14), which provides that.:
    “No right of entry shall accrue, or action be maintained for a specific performance of any contract, for the sale of any real estate, or for damages for non-compliance with any such contract ; or to enforce any equity of redemption after re-entry made for any condition broken, or to enforce any implied or resulting trust as to realty, but within five years after such contract was made or such equity or trust accrued, with the right of entry, unless such contract shall give a longer time for its performance, or there has been in part a substantial, performance,” etc.
    The defendant has cited numerous English authorities to show that the plaintiff is barred by lapse of yea: s from maintaining his cause of action, but as they are not in force in this State, and as the law which governs this case appears to the" master to be derived entirely from the Act of 185G, it is to that alone that we will refer.
    Excluding from the discussion of the case the point raised by the counsel of defendant, that the wiitten contract of September 7, 1872, may be explained by the verbal agreement to sue the builder which defendant alleges was to be taken as part of such contract, because the master is of the opinion that the facts in the case do not show that there was any such verbal agreement at the time of its execution, the questions raised in the case may be reduced to the single inquiry : “ Has there been in part such a substantial performance by the plaintiff, Daniel Howard, of this contract, as to entitle him to compel the defendant to convey to him the strip of land, which is the subject of the controversy.”
    It does undoubtedly seem to be a hardship that the defend, ant, by lapse of years and through no fault of his, should have lost his opportunity of bringing suit for the improper construction of the building. He trusted to his friend to see that it was being properly ei ected, but it appears that this friend, the present plaintiff, was as much in ignorance of this mistake as he himself was. It -was such an error as might, however, have escaped the eye of any friend, however vigilant he might have been.
    Looking at the contract of September 7, 1872, it will be found that, in order to entitle the plaintiff to a conveyance of the property in question he wns to perform two things; first, to pay the defendant the sum of ten dollars, and, second, to erect in his own house and upon his own land separate flues •or chimneys.
    That he has complied with these requisites is proved by the facts in the case. He not only paid to the defendant, on the day of the execution of the contract, the sum of ten dollars, but subsequently caused to be erected in May, 1873, the flues or chimneys, in accordance with the terms of the contract. The consideration was not only valuable but actual, and besides all this, he has been in uninterrupted possession of the property in dispute since September, 1870; and although about s.-vea years elapsed from the date of the execution of the contract to> the time of filing of his bill, still the plaintiff is amply protected by the Act of April 22, 1856, as in the master’s opinion there has been by him such “a substantial performance” as to prevent his being barred by lapse of years.
    Upon the whole case, therefore, the master is of opinion that, the plaintiff is entitled to a decree in his favor.
    The Court entered the decree as follows :
    I. That the defendant, Michael Cummings, Avithin thirty days from the date of entering this decree, convey to the plaintiff, Daniel Howard, in fee, all that strip of land adjoining his house on Wayne street, Germantown, the said strip to run through the middle of the party Avail between his and Michael Cummings’ house, four and one-half inches, more or less, in front, and to a point in the rear.
    Cummings then appealed, complaining of the decree.
    Francis E. Breavster, Esq., for the appellant,
    cited Jones vs. Peterman, 3 S. & R., 546; Tiernan vs. Roland, 15 Pa., 438; Millard vs. Earl, of Thayne, 5 Vesey, 520; Duboise vs. Baum, 46 Pa., Pa. 540; Miller vs, Henlan, 51 Pa., 269; White vs. Damon, 7 Vesey, 85; Dalzell vs. Crawford, 1 Parsons, 37; Freetly vs. Barnhart, 51 Pa., 279; Weise’s Appeal, 72 Pa., 351; Clark vs. Trindle, 52 Pa., 492; Webster vs. Webster, 53 Pa., 164.
    Messrs. W. G. Smith and Francis Rawle, Esqs., contra,
    cited Act 26 April, 1856; Todd vs. Pfoutz, 3 Yeates, 179; Tiernan vs, Roland, 15 Pa., 438; Morgan vs. Scott, 26 Pa., 51; Finley vs. Aiken, 1 Grant, 83; Thompson vs Pittston & Elmira Coal Co., 7 Phila., 617: Pugh vs. Good, 3 W. &S., 62; Lar son vs. Burt, 4 W. & S., 28.
   The Supreme Court affirmed the decree of the Court below on January 23, 1882, in the folio ,ving opinion :

Per Curiam.

We affirm this decree upon the report and opinion of the-learned master in the Court below.

Decree affirmed and appeal dismissed at the costs of the ap* pellant.  