
    Henry P. Platt v. Benjamin Eggleston et al.
    
    W. being the owner of a lot, conveyed one-half of it to P.; and by a separate agreement in writing, not under seal, stipulated that P. might erect half of the wall of a building on the part of the lot retained, and that in any sale which W. might mate of the last-named premises, he would require the purchaser, when he or his assigns should use said wall as a party-wall, to pay P. or his assigns one-half of its value. After P. had erected the building, he conveyed his half of the lot “ with the appurtenances” to E.; and, subsequently, the assignees of W. used the wall in the erection of an adjoining building. Held :
    
    1. That the effect of the agreement was to give P. and his assignee the right, in equity, to an easement for the support of one-half of the wall on the premises of W. ; and that this right, as well as the property in the wall, passed to E. by P.’s deed of conveyance to him.
    3. That as the property thus conveyed to E. was liable to be subjected, under the agreement, to the burden of the use of the wall for the benefit of the adjoining premises, he was equitably entitled to the compensation to be paid therefor.
    Error to tbe court of common pleas of Lucas county. Reserved in the district court.
    Tbe case is sufficiently stated in tbe opinion of tbe court.
    
      Kent, Newton & Pugsley for plaintiff in error:
    1. It is said that tbe Platts, by a deed witb full covenants -of warranty, conveyed to Wilson and Eggleston tbeir balf-lot, together witb all privileges and appurtenances to tbe same ’belonging.
    Whether the deed was witb or without covenants, we conceive, in nowise aids the claim of Eggleston. He does not base his claim on any breach of covenant, and he does not in this proceeding prefer any claim against the Platts.
    We fail equally to see in what way Eggleston is aided by .the description in the deed. The deed purports to convey the half-lot with the privileges and appurtenances. But the conveyance of the half-lot did not carry that portion of the wall not standing on it.
    But the claim made in this action by either party, upon Young and Waite, is predicated upon a supposed inability to enforce against the purchaser or his assigns any pay for the wall or for its use.
    While it is true that the half-wall standing on the adjoining lot was not conveyed by the deed of the Platts, it is perhaps true that the Platts, and Eggleston as their assignee, would have a right to insist that the whole wall should remain as it was erected by them, under their agreement with Young and Waite.
    If so, the right which passed by the deed of the Platts, as incident to the property described therein, was the use of the wall for support, and, consequential upon that, an easement in the laud upon which the wall stands.
    If, however, this right of support passed as incident to the sale and conveyance made by the Platts, and so was appurtenant thereto, within the terms of the deed, still we do not see how this admission in any wise aids the claim of Eggleston. It is not claimed that the assignee of Young and Waite questions this right of support. On the other hand it is admitted that the assignee has used that portion of the wall, in erecting an adjoining building, and so in effect recognizes such right.
    But whether such right of support were conceded or denied, makes no difference in discussing the legal status of Eggleston. It is not the right of support which he seeks, nor is it damages for any breach of contract connected therewith. What he complains of is, that Young and Waite did not bind the purchaser of the half-lot to pay for the value of half of the wall when used.
    
      2. The contract between the Platts and Yonng and Waite was not under seal, and was not incorporated in the deed,, and therefore there is not here any covenant running with the land. A covenant must be evidenced by an instrument of writing under seal.
    Rut supposing the stipulations of Young and Waite had the effect of a covenant, it cannot be said to run with the land. Notes to Spencers' case, Smith’s Leading Oases, 157.
    It is true that Young and Waite agree to require the purchaser to pay the Platts or their assigns. But we suppose the-assigns referred to is the. assignee of the contract, and not the assignee of the land.
    3. Young and Waite not being the owners of either part of the lot, simply stipulated that on sale being made they would require the purchaser to pay. Not stipulating that on-using the wall they would pay, the present case is in no-respect covered by any legal authorities which have come under our notice.
    But we claim that if Young and Waite had covenanted in their deeds to the Platts, that in case they, Young and Waite- or their assigns, used the wall they would pay, the legal-authorities sustain us fully in saying that such is a purely personal covenant, and Eggleston could not maintain any action thereon. Bloch v. Isham et al., 28 Indiana, 37 Todd v. Stokes, 10 Barr, 155; Gilbert v. Drew, Id. 219.
    We therefore deny that Eggleston has any right to maintain an action on this contract which was not made with, and' which does not concern him, or that he presents any legal-claim to recover damages for a breach which has in no-manner damnified or injured him.
    
      Wm. Baker for defendants in error:
    The question presented in the ease is, what passed by the-conveyance of Platt to Eggleston ?
    It is a matter of no importance, whether the party-wall contract was incorporated in the deed from Young and Waite-to Platt. He obtained that right at the same time he bought the lot, and as part of the same consideration, and because he-was acquiring the ownership of the lot. It would not, and could not have been granted to him except as the owner of the la/nd. Prom the moment of the delivery of the deed and this agreement by Young and Waite, therefore, to Platt, the-right conceded by the contract became appurtenant to the lot. granted by the deed. It is not, therefore, a mere personal contract, pertaining to Platt as an individual, but attaching-to him only as the owner of this land, and attaching itself, with all its provisions, to the land itself as appurtenant to-it. And when Plait sold the land, he must- have supposed he was selling, and his grantee certainly understood he was-buying, the lot and the building, just as it stood, with all its-walls, and the right of support, and, as incident thereto, the right to compensation if these walls should be lessened in value by reason of being compelled to sustain the burden of another building.
    We are not suing Young and Waite upon their covenant,, or their contract, and no question of our right to sue them,, or how we acquired such right, arises. They are not sued' on the contract or in any other way; but are mere stake holders. The value of the half wall is voluntarily broughk into court by them, and the only question is, who is entitled) to it?
    We do not see, therefore, why the case as it stands is not completely covered and determined by the case of Burlock v. Peck, 2 Duer, 291. See also Brown v. Peltz, 1 vol. N. Y. Legal Obs. 24; United States v. Appleton, 1 Sumner, 492; Weyman's Ex'r v. Ringgold, 1 Bradford, 52; Washburn on Easements, 459-464; Morgan v. Mason, 20 Ohio, 401.
   White, J.

Morrison R. Waite and Samuel M. Young, as-receivers of the Commercial Bank of Toledo, holding the title-to lot number 136, Port Lawrence Division, in the city of Toledo, sold and conveyed to Harvey P. and Edwin S. Platt,, the north-easterly half thereof, and as part of the terms of sale, delivered to the purchasers their agreement in writing,,, of which the following is a copy:

"In consideration of the purchase, by Harvey P. and Edwin S. Platt, of the easterly half of lot 136, Port Lawrence Division of Toledo, we hereby agree that the said Platts may erect on the westerly half of said lot, one-half of the brick wall of a building to be by them erected on said lot, to be used as a party-wall; and that in any sale which we may make of said westerly half of said lot, we will require of the purchaser whenever he or his assigns shall use said wall or any part thereof as a party-wall, to pay to said Platts or their assigns one-half the value of so much of said wall as he or they may or shall use.
“Young & Waite, Beoewers.
“ Toledo, August S3, 1859.”

The Platts, after their purchase, erected a building on the half of the lot conveyed to them, and, in pursuance of the agreement, placed half of one of the walls on the part of the lot retained by Young and Waite.

On the 8th day of August, a.d. 1860, the Platts sold and conveyed their half of the lot, with full covenants of warranty, to Wilson and Eggleston, “ with all the privileges and appurtenances to the same belongingand, subsequently, Eggleston became invested with all the rights of Wilson and Eggleston.

On the 15th day of May, a.d. 1863, Young and Waite sold, :and conveyed by deed of release, the other half of the lot, without requiring the purchaser or his assigns to pay for any part of the wall when it should be used.

One Coy, holding under this deed, erected a building on the premises last named, and, in doing so, used as one of the walls of his building the wall which had been built by the Platts under the agreement between them and Young and Waite.

In May, a.d. 1867, Edwin S. Platt assigned his interest in "the written agreement above sfet forth to Harvey P. Platt; and •the contention in the court below was'between Eggleston and Harvey P. Platt as to which of them was entitled to the stipulated compensation for the use of the wall.

The court decided in favor of Eggleston, and gave judgment in his favor against Young and Waite for half the value of the wall.

Harvey P. Platt, who alone complains of the judgment, in his petition in error, claims that the court erred in not adjudging the compensation to him instead of to Eggleston,

The correctness of the judgment depends upon whether the right to the compensation for the use of the wall passed by the deed of the Platts to Wilson and Eggleston as appurtenant to the premises conveyed.

In determining this question, under the circumstances of this case, we attach no importance to the fact that the agreement of Young and Waite was not under seal; and was not, therefore, technically, a covenant recurring with the land: nor to the fact that the agreement was not embodied in the deed of conveyance.

A covenant is said to run with the land, when either the liability to perform it or the right to take advantage of it, passes to the assignee of the land.

And where the rights of the parties arise on simple contract, and are, as respects the land, purely of an equitable nature, equity follows the law, and will enforce the contract in favor of those who are equitably entitled to its benefits.

The agreement now in question has direct reference to the land, and, as an entirety, is beneficial to the owner as owner, and to no other person.

To effectuate the intention of the parties it must, in every other respect except as to the compensation, be regarded as intended to go with the land.

Its effect was to give to the purchasers, the Platts, and their assigns, the right, in equity, to an easement for the support of one-half of the wall on the premises retained by the vendors, Young and Waite.

The purchasers paid the consideration in making the purchase of part of the lot; and having taken possession and built the wall, the agreement was fully executed on their part.

The right to the partial support of the wall on the adjoining premises can only be regarded as an appurtenance to the premises conveyed by Young and Waite to tbe Platts ; and this being its character, it as well as the right to the whole of the wall passed by the conveyance to Wilson and Eggleston.

The property thus conveyed was liable to be subjected, under the agreement, to a burden for the benefit of the adjoining premises. But when the property was subjected to such use by the adjoining owner, it was to be paid for. The-right was not exercised until after Wilson and Eggleston became owners of the property; and, it seems to us, as their property was required to bear the burden, they ought to receive the compensating benefit, and that this may fairly be presumed to have been in accordance with the intention of the parties to the original agreement.

The cases cited from Pennsylvania, in the argument for the plaintiff in error, are founded on a statute of that State, the substance of which is found in Washburn’s Easements and Servitudes, p. 473. The statute provided that the first builders of the wall should be reimbursed, but made no provision in terms for their assigns. It was held that the right to compensation did not pass with the land.

In Bloch v. Isham (28 Ind. R. 37) the Pennsylvania rule was followed; and it is said, in the opinion, that the effect of the agreement in the case was the same as that of the Pennsylvania statute. The promise of compensation was to the original party to the agreement, but not to his assigns.

The New York cases, so far as they have come to our notice, favor the ruling of the court below. Burlock v. Peck, 2 Duer, 91; Weyman's Ex’rs v. Ringold, 1 Bradford’s R. 52-61; Keteltas v. Penfold, 4 E. D. Smith, 134. See also Savage et al. v. Mason, 3 Cush. 500.

The judgment will be affirmed.

Scott, C.J., and Welch, Day, and McIlvaine, JJ., con curred.  