
    Ingles v. Bringhurst.
    
      Parly-walls.
    
    The claim for the moiety of the cost of a party-wall, is a personal charge against the builder of the second hou3e, and not a lien upon the house itself.
    Indebitatus assumpsit for money laid out and expended, &c. The case was this : The plaintiff, Ingles, had a house in the district of Southwark, against the wall of which one Waters had erected another House. Waters becoming insolvent, his house, on *the 1st of August 1774, was sold « , under a venditioni exponas to one Ridley ; but he also falling into *- distress, the house, by virtue of a similar process against him, was again sold, on the 7th of March 1776, to the defendant, Bringhurst, for a full and valuable consideration. In the advertisements published on the occasion of these successive sales, no other incumbrance was mentioned, than a ground-rent of 6l.; and the defendant had remained in quiet possession of the premises, until about two or three years ago, when the plaintiff demanded of him one-half of the cost of the party-wall between the above-mentioned houses ; and the demand being refused, he brought this action to recover the amount.
    The question, therefore, agitated on the trial, was, whether the claim for a reimbursement of a moiety of the cost of a party-wall, under the act of assembly (1 Sm. L. 125), was a lien upon the land, or only a personal charge against the builder of the second house ?
    The plaintiff called several witnesses (who had been regulators of considerable experience), in hopes of establishing a custom favorable to his pretensions. They only proved, however, that the valuation of a party-wall was never made, until the second house was built; and that, even afterwards, it was frequently postponed for four or five years. One of the witnesses, indeed, said, that he remembered an instance where the purchaser paid the moiety of the cost of the party-wall, and not the original builder of the second house ; but he could not ascertain whether this was the effect of any agreement of the parties, or not.'
    The argument was conducted by Levy, for the plaintiff, and by Tilgh-man and Ualloioell, for the defendant.
    For the plaintiff,
    
    it was urged, that, in a variety of cases, the law favored and supported a usage in particular matters, even before it had attained all the characteristic qualities of a custom. Thus, the general rule of law entitles a lessee pur outer vie to emblements, but not a tenant for. years ; and yet, on the usage of a particular place, it was determined, that where there was a lease for one year from the 25th of March, the lessee might (after the expiration of the term on the succeeding 25th of March) enter, at the October harvest, upon the arable lands, and remove the crop, notwithstanding the positive limitation of his contract. Doug. 361. A warrant of attorney to confess a judgment is, by the course of the court (which is the law of the court), made irrevocable ; and yet it is the nature of all letters of attorney to be revocable. Forrest. 95. In Pennsylvania, likewise, several striking precedents have been established upon this point. On proof that it was a usage among tanners to work in and out, for three vatches, it was lately decided in thi's court, that for that purpose, the lessee of a tan-yard was entitled to hold over the possession, although his agreement was for a fixed and determinate time. So', in the .case of a feme covert, who could not, at common law, convey her maiden lands, but by fine, yet, as it had been the constant usage of the province to make such conveyances *by deeds of bar- pg^g gain and sale, the usage was recognised by the court, and the deeds [*343 adjudged to be obligatory. Lloyd's Lessee v. Taylor, ante, 17. In the case at bar, it is proved to have been the general usage, not to value the party-wall, until the second house is built; and even then, it is frequently delayed for several years ; so that it must necessarily be inferred, that the usage extends to make the purchaser of the second house, as liable as the person who built it, for the moiety of the partition ; of which, indeed, all the positive evidence has been given, that the nature of the case affords.
    For the defendant,
    
    two points were made : 1st. That the action could not be maintained at common law : And 2d. That it was not authorised by the act of assembly.
    1. On the first point, it was observed, that bond fide purchasers for a valuable consideration are highly favored in law (2 Black. Com. 247); and of these, purchasers under an execution are the most esteemed ; insomuch that if the execution is afterwards set aside for irregularity, they shall nevertheless hold the lands. 2 Bac. Abr. 370. (1 Sm. L. 61.) Pursuing this regard for honest purchasers, if a trustee sells trusts lands for a valuable consideration, without giving notice of the trust, the law declares that the buyer shall hold the lands discharged (Cas. Temp. Talb. 260); and even if a man purchases for a valuable consideration, with notice of a settlement, from one who bought without notice, he shall shelter himself under the first purchaser. 1 Atk. 571. The defendant is a bond fide purchaser under an execution, for a valuable consideration, without notice of the plaintiff’s demand : he is, therefore, in all respects, within the benefit of these authorities, and ought not to be made responsible for the negligence of the plaintiff, who had it in his power to recover from the original owner of the house, who knew of the sales, who never gave notice of his claim, at the times of sale, and who has suffered so long a period to elapse, before he made a demand, as to justify a presumption, that, whatever was due, has been paid. Cowp. 109. If, indeed, a man will stand by, at the time of sale, and not disclose his lien, the law deems him guilty of a fraud, and postpones his right to that of the purchaser. 2 Atk. 83; Gilb. Eq. Rep. 85; 1 Ves. 94. In the present case, particularly, it would bo highly dangerous, if the rule were otherwise ; for there is no record, as in the cases of mortgages and judgments, to which a man can refer in order to ascertain the incumbrances that will thus affect his purchase ; nor is there any means by which a remote purchaser can show that the lien has been discharged by his predecessors.
    It is evident, then, that a lien of this kind can only be created by the operation of law, or the act of the parties. It is not pretended, that the defendant is liable from his own act; for he neither built the house, nor assumed to pay the money ; and when the plaintiff would avail himself of a usage, it is incumbent upon him to make strict proof of its existence ; which *S441 bas failed in doing upon this *occasion — whatever might be the J effect of the testimony, as between Ingles and Waters, the original builders of the houses, to whom alone it has any relation.
    2. Nor, on the second point, is the action authorised by the act of assembly. The words relating to this controversy are, that “ the first builder shall be reimbursed one moiety of the charge of the party-wall, or for so much as the next builder shall have occasion to make use of, before he shall in any wise use or break into the said wall, &c.” Here, then, is the remedy which, by operation of law, is given to the first builder : and when a statute gives a new remedy, the party must take it on the terms of the act. 2 Burr, Fitzg. 47; 3 Lev. 48; Fitz. 85; 1 Vent. 104. Str. The plaintiff was em powered to compel a reimbursement of the moiety of his expenses, before Waters could use the wall; and if he has neglected to do so, although it would perhaps be unjust in Waters himself to refuse the payment, yet there is no legal or moral obligation that can bind a subsequent purchaser ; for, on the spirit and words of the act, he had a right to presume that the claim was already satisfied ; or, if he had known that it was not, he might have insisted on some abatement in the price. The first builder, indeed, could have no greater lien than the carpenter or mason who built the house. In England, where real estate is not liable for the payment of simple-contract debts, if a house descends to the heir, he is not bound to pay the carpenter that repaired it, who can only resort to the personal estate, for satisfaction 1 Ves. 155. So, here, as the plaintiff allowed the second builder to use the party-wall, before he exacted the contribution which the law allows, it became a matter of mere personal confidence ; and, however the person of Waters might be liable, his house and lot were effectually discharged.
    For the plaintiff\ in reply.
    As the defendant has not relied on the statute of limitations in Ms plea, no argument from the lapse of time can apply. Nor is it any reason that the plaintiff should lose his claim, because the sheriff omitted or neglected to make it known at the time of sale ; and there is no ground to presume (nor ought fraud ever to be presumed, 2 Atk. 83), that the plaintiff knew when the sale was. Incumbrances in law or equity are not altered or affected by a sheriff’s sale. The sheriff has no authority to bind a stranger to the process under which he sells : and this distinguishes the case from that of the trustee, whose acts are binding upon the cestui que trust. It is clear, that a mortgage shall divest the title of a ¡purchaser, though the mortgage was not mentioned at the sale ; for the sheriff only sells the right which the defendant had in the premises. The defendant Might to have inquired whether the plaintiff’s claim was satisfied; and the law does not help those who sleep, but only those who are active and vigilant.
    The right given by the act of assembly, to be paid before, is a new and extraordinary one ; for the common law admits of no compensation until value received. There is not any remedy, however, pointed out for the recovery of this new right; and it will *hardly be pretended, that an action would lie before the second house was begun ; until which *- túne, it is impossible to say how much of the wall is wanted, nor, consequently, how much contribution is due. But the plaintiff does not insist on this new right ; he does not ask for payment before, but long after his wall has been used ; and surely, the legislature that gave a right in the former case, must have admitted a much stronger right to recover in the latter ; for he who uses another’s property is liable, at all times, to pay for it. This, indeed, is a principle of natural justice, paramount to all acts of assembly; and as every continuance of a nuisance is as culpable as the original offence, the defendant’s continuing to occupy and use the plaintiff’s wall, is, in itself, sufficient to make him liable to the present demand.
   Shippen, President.

The principal point in this case is, whether, under our act of assembly, th e moiety of the cost of a party-wall is a personal charge against the builder of the second house, or such a lien upon the house itself, as shall render it liable to the reimbursement of the first builder, into whose hands soever it may come ?

Lien is a technical term, that means a charge upon lands, running with them, and incumbering them in every change of ownership ; as mortgages, judgments, ground-rents, &c. There are some liens, also, created by statute; as, in the very act in question, where a perpetual lien is clearly given to the first builder of a party-wall, for so much of his neighbor’s land, as one-half of the breadth of the wall shall cover. It is enacted, at the same time, that the second builder, having the use of one-half of the wall, shall reimburse one-half of the expense of building it; which is a reasonable and useful regulation, calculated to prevent animosities and disputes.

Whether, however, a purchaser of the second house, after it is built, shall be liable to the claim of the first builder, who has neglected or declined to assist upon the payment, before his wall was broken into, has been made a question, but, I think, it is easily resolved by attending to the expression and manifest intent of the law.

The act of assembly declares, that the first builder shall be reimbursed ; but it also prescribes the time of reimbursement to be, before the second builder shall in any wise use, or break into the wall. This, it has been observed, is an indefinite right of payment; for, until the second house is begun, it cannot always be ascertained how much of the wall will be wanted, nor, until then, is there any form of action in which a recovery can be had. But this argument may, at once, be obviated, by considering, that if a man makes a breach in my wall, he is a trespasser, and, generally speaking, I have a competent remedy for the injury which he has done. The act of assembly, however, provides, that any person whose lot joins upon my house, may lawfully use and break into *the wall, if he has first paid me a -1 moiety of the cost of building it. Now, although no action will lie to recover this moiety, until the second house is actually begun, yet, if it is begun, and a breach made in the wall, before the payment, the builder is considered as a trespasser, notwithstanding half of the wall is raised upon his ground ; and in an action of trespass against him, he could not justify under this act. Or, perhaps, the plaintiff might waive the trespass and bring an action on the implied assumption, for money paid for the defendant’s use.

The difficulty, indeed, of ascertaining how much the first builder is entitled to receive, until the second house is erected, has given rise to the usage that has been proved ; but this extends no further than to show, that the valuation of the party-wall is never made before the ■ second house is built, and often, not until several years afterwards. The usage, to this effect, may have a reasonable foundation ; but to reach the present case, the evidence of a usage, if at all admissible, ought to have shown, that, for a long series of years, the owner of the second house, however remote from the builder, was held liable to pay the moiety of the charge of the party-wall. This has not, I think, been satisfactorily done.

The plaintiff then contends for his claim, upon another principle, that, as the defendant has the use and occupation of the wall, he ought to be proportionally liable for the cost of building it; and this would certainly be a strong argument, if a lien actually existed. But if the moiety of a party-wall is only a personal charge against the second builder, there is no more reason tliat a subsequent purchaser should be responsible for that, than for the payment of a brickmaker or mason. Considering it, therefore, as a lien, it will bind the estate like a mortgage or judgment; but, considering it as a personal charge, the plaintiff, upon an implied contract (as well as the tradesmen who-were employed, upon an express one) must resort to Waters for payment and satisfaction of his demand.

This, therefore, brings it to the original question, whether, in this case, a lien exists or not ? And the Court are clearly of opinion, that it does not. Why, indeed, should the legislature have directed the payment to be made before the breach, if they meant that the second house should be for ever charged with the cost of the party-wall, whoever might be the owner? In almost every instance of a lien, there is some record by which it is announced to the public, and to which every man may have access. But here, it is a dormant transaction ; the claim is not known, when the sale takes place, so that the purchaser loses the opportunity of indemnifying himself; and even if it had been satisfied by the first builder, or the intermediate purchaser, that is a fact which it cannot be in the defendant’s power at this time to establish.

Yerdict for the defendant, 
      
      
         s. p. Hart Kucher, 5 S. & R. 1; where it was held, that if the value of the moiety of the party-wall he paid to the first builder, by the owner of the adjoining lot, the claim of the former is determined, and a purchaser from him, cannot afterwards recover the amount, when a second building is erected; although he has had no notice of such payment.
      
     
      
       And see Davids v. Harris, 9 Penn. St. 501; Todd v. Stokes, 10 Id. 155; Dannaker v. Riley, 14 Id. 436; White v. Snyder, 2 Miles 395. The law on this point has been altered by the act 10th April 1849 (P. L. 600); but that act has no retrospective operation. Dannaker v. Riley, ut supra; Bell v. Bronson, 17 Penn. St. 363. See Knight v. Beenken, 30 Id. 372, as to the effect of this statute.
     