King v. Wight

Morton, J.

We can have no doubt that Mrs. Burt and Mrs. Pease intended by their agreement to bind and benefit their respective estates, into whosesoever hands they might come, and did not intend a merely personal contract between themselves. The structure to be built was to be permanent, and was designed to serve as a partition wall between two adjoining blocks, and was to stand one half on the land of each owner, and was to have flues where one party or the other, as the case might be, should direct. There was nothing which limited the building of the wall to the parties to the agreement, or during their ownership of their respective premises. On the contrary, it is expressly provided that the agreement shall be binding on them and their heirs and assigns forever, meaning clearly that the heirs and assigns of each shall succeed with the estate to the same rights and liabilities under the agreement which their predecessor in title had or might have. If, for instance, neither Mrs. Burt nor Mrs. Pease built the wall, then the heirs or assigns of either might build it as provided in the agreement, and with the same rights on the part of the adjoining landowners to use it, and upon using it the same liability to pay for one half of its cost, as would have arisen if it had been built by Mrs. Burt and used by Mrs. Pease, or vice versa. Such being the purpose of it, the next question is whether the agreement, as thus construed, can be carried into effect. We think it can be, and that it creates mutual covenants running with each lot. The form of the instrument is plainly sufficient. It is under seal, binds the heirs and assigns of the respective parties, and is duly acknowledged and recorded. The fact that it does not purport in terms to create covenants running with the land is not of much moment. The effect of the instrument is to be gathered from it as a *447 whole. Where one party covenants with another in respect of land, and at the same time with and as a part of making the covenant neither parts with or receives any title or interest in the land, nor creates an easement or a right in the nature of an easement for the benefit of the land, such a covenant is at best but a mere personal contract. Morse v. Aldrich, 19 Pick. 449 . Savage v. Mason, 3 Cush. 500 . Bronson v. Coffin, 108 Mass. 175 , and 118 Mass. 156 . Norcross v. James, 140 Mass. 188, 190 .

In the present case the agreement created an easement of use and support in favor of each lot-owner, and her successors in title, in the half of the wall which stood on the other lot, and in the land under the same. Each lot of land became entitled, therefore, to the benefits and subject to the burdens arising from the covenants contained in the agreement, and relating to the erection and maintenance of the wall. They inhered in and belonged to it. The burdens and the benefits were inseparably connected, and the defendant could no more avoid paying to the successors in title of Mrs. Burt for one half of the wall when he sought to use it, than he could prevent the wall from standing when it had been built, assuming that it was built one half on each lot. In this view of the case it is not necessary to consider whether the defendant would be liable, as upon an undertaking to pay the cost of one half of the wall to whomsoever should be the owner of the adjoining lot when he should desire to use the half of the wall on his side. See Maine v. Cumston, 98 Mass. 317 ; Standish v. Lawrence, 111 Mass. 111 ; Richardson v. Tobey, 121 Mass. 457; Martin v. Drinan, 128 Mass. 515 .

We understand the defendant practically to concede that, if we should be of opinion that the agreement creates covenants running with the land, then the plaintiffs are entitled to recover. At any rate he contends that the plaintiffs cannot recover unless the covenants contained in the agreement do run with the land. For the reasons given above we think they do; and the entry must be, therefore, Exceptions overruled.