#### GEORGE P. REID v. R. V. KING.

(Filed 23 December, 1911.)

1. Contracts — Oral—Party Walls — Abutting Owner — Agreement to Pay — Equity—Statute of Frauds.

A parol agreement between adjoining owners of lands that one should build a division wall partly on the lands of each owner and for the use of both, for which the other was to pay one-half of the cost in the event he should thereafter use it, is enforcible in equity after the wall has been built by the one and the other has used it accordingly; and being enforced upon equitable principles, it does not fall within the meaning of the statute of frauds, which requires that a contract concerning lands or interests therein be in writing.

2. Same — Easement—Deeds and Conveyances — Subsequent Purchasers with Notice.

By parol agreement between the owners of adjoining lots, one of them built a brick building on his own land, one wall of which rested partly on the lands of the other, and one-half the cost of its erection was to be paid by the other party when he should use it: Held, the effect of this agreement was to create cross-easements as to each owner, which would bind all persons succeeding to the estates to which the easements are appurtenant, and in equity a purchaser of the estate of the owner so contracting, having notice of the agreement, would take it with the liability to pay one-half the cost of the wall, whenever he availed himself of its benefits.

3. Same — Incorporeal Hereditaments.

When by parol agreement one owner of lands has built a party wall one-half upon his own land and the other half upon that of an adjoining owner, and the latter had agreed to pay *86for one-half of the wall when he should use it, equity, to give effect to the agreement, will regard the agreement as creating an incorporeal hereditament (in the form of an easement) out of the unconveyed estate, rendering it appurtenant to the one conveyed, and binding upon the title of subsequent assignees with notice.

4. Courts — Form of Action — Equity—Pleadings.

' Actions at law and suits in equity being adjudicated and determined under our statute by the same tribunal, equities will he administered therein where they sufficiently arise upon the allegations of the pleadings, without regard to the form or manner in which they are alleged.

Appeal from Justice, J., at July Special Term, 1911, of RutJIEREORD.

This action was brought by the plaintiff to recover one-half the cost of erecting a party wall on the line dividing the lots of the parties.

The following are the facts, as gathered from the pleadings and proofs: In 1904 the plaintiff and one Edward Thompson were the owners of adjoining lots in the town of Forest City, N. C. The plaintiff, in 1905, erected a two-story brick building on his lot in such manner that the eastern wall thereof rested one-half on his lot and the other half on the lot of Thompson; at the time plaintiff erected his building he entered into a verbal agreement with Thompson, providing that he might construct the east wall of the building on the dividing line of the two lots, so that one-half thereof would rest on each lot, and that the said Thompson, should he ever build on his lot, might join his building to the east wall of plaintiff’s building upon his paying plaintiff one-half the value of the wall at the time he should make use of the same, and if Thompson should decide not to build on his lot, but should sell the same, then and in, that case he should give plaintiff the first offer to purchase his lot, and if he sold to another he would make known to him the terms of the contract between him and the plaintiff in reference to the use of the wall. After plaintiff had erected his building, Thompson sold his lot to defendant, but before selling it to him he informed him of the terms of his agreement with the plaintiff. Thereafter the defendant erected a two-story brick building on *87bis lot, and in doing so used tbe east wall of plaintiff’s building as tbe west wall of bis (defendant’s building) ; tbe defendant, at tbe time be purchased ■ tbe lot from Thompson and at and prior to tbe time be used plaintiff’s' wall, bad actual notice and full knowledge of tbe agreement between plaintiff and Thompson.

Defendant testified, in part, as follows: “After Dr. Eeid bad built, I went to Mr. Thompson and told him I wanted to buy the lot, and be said be was thinking of building himself; be further told me that when Dr. Eeid built tbe wall be came to him and said bis lot was narrow and be wanted to build tbe wall half on bis (Thompson’s) lot; be said be told Eeid to go ahead and if be (Thompson) built, be would pay for one-half tbe wall, and if be did not build, be would give Eeid tbe refusal of tbe lot so be could get tbe advantage of tbe wall. That was all be ever said to me about tbe wall until after he made me a deed.”

Tbe jury returned tbe following verdict:

1. Is defendant indebted to plaintiff? Answer: Yes.

2. What was tbe actual cost of erecting tbe wall as of tbe date that defendant joined to tbe wall? Answer: $625.

Tbe court instructed tbe jury that, upon tbe admissions in tbe pleadings and evidence, they should answer tbe first issue “Yes,” and that they would find, upon tbe testimony, tbe actual cost of erecting tbe wall as of tbe date tbe defendant joined bis, building to it, and answer tbe issue accordingly.

Judgment was entered up tbe verdict, and defendant appealed.

McBrayer, McBrayer & McRorie for plaintiff.

Ryburn & Hoey and M. L. Edwards for defendant.

'Walkeb, J.,

after stating tbe facts: It has generally been held in cases of this kind that there can be no recovery ai law for tbe use of a party wall, built by one of tbe adjoining proprietors, against tbe other, but tbe remedy must be sought in a court of equity. Tbe governing principle is nowhere better expressed than by Chancellor Kent in tbe leading case of Campbell v. Messier, 4 Johns. Ch. (N. Y.), 334. It will be well to state *88tbe facts before referring directly to tbe opinion of tbe Court: Two parties living in tbe city of New York, on adjacent lots and having on tbe common "line of their buildings a ruinous party wall unfit to stand, and one of tbe persons thus situated being desirous of rebuilding, proposed to tbe other coterminous proprietor to unite with him in rebuilding tbe party wall, but this request was refused. Whereupon Campbell, tbe proposer, proceeded to tear down bis own bouse, as well as tbe party wall, and rebuilt both. Thereafter Messier, who bad refused to assist in rebuilding tbe party wall, devised bis property to bis son, who thereafter sold tbe lot to Dunstan, and in tbe deed expressly conveyed to tbe latter tbe use of tbe party wall for building, and covenanted to indemnify him for so using it. Dunstan then pulled bis bouse down and erected a new one, and in so doing made use of tbe party wall, but refused to pay bis proportionate share of that wall. Campbell then sued him in an ordinary action, but was nonsuited on tbe ground that be bad no remedy at law. On this Campbell filed bis bill against both Messier and Dunstan, praying that tbe defendants be decreed to come to a settlement with him touching tbe building of tbe party wall, and to contribute and pay one-balf of tbe value thereof, etc. Upon this state of facts tbe prayer of tbe bill was granted, and a decree entered accordingly, Chancellor Kent remarking: ‘I have not found any adjudged case in point, but it appears to me that this case falls within tbe reason and equity of tbe doctrine of contribution which exists in tbe common law, and is bottomed and fixed on tbe general principles of justice.’ In Sir William Harbert’s case, 3 Co., 11, and in Bro. Abr., tit. Suite and' Contribution, many cases of contribution are put, and tbe doctrine rests on tbe principle that where tbe parties stand in equali jure, tbe law requires equality, which is equity, and one of them shall not be obliged to bear tbe burden in ease of tbe rest. It is stated in F. N. B., 162b, that tbe writ of contribution lies where there are tenants in- common, or who jointly bold a mill, pro intMvisa, and take tbe profits equally, and tbe mill falls into decay, and one of them will not repair tbe mill. Tbe form of a writ is given to compel the other to be contributory to tbe reparations. In Sir William Harbert’s case it was resolved that *89'when land was charged by any tie, the charge ought to be equal, and one should not bear all the burden; and 'the law on this point was grounded in great equity.’ . . . The doctrine of contribution is founded, not on contract, but on the principle that that equality of burden as to a common right is equity, and the solidity and necessity of this doctrine were forcibly and learnedly illustrated by Lord Ch. Baron Eyre in the case of Dering v. Earl of Winchelsea, 1 Cox’s Cases, 318. . . . The obligation arises not from agreement, but from the nature of the relation, or quasi ex contractu, and as far as courts of law have in modern times assumed jurisdiction upon this subject, it is, as Lord Eldon said (14 Ves., 164), upon the ground of an implied assumpsit. The decision at law, stated in the pleadings, may therefore have arisen from the difficulty of deducing a valid contract from the case; that difficulty does not exist in this Court, because we do not look to a contract, but to the equity of the-case, as felt and recognized according to Lord Golee in every age by the judges and sages of the law.” And the cause was referred to a master to ascertain the cost of the wall. Afterward, the cause coming on again before the chancellor, he ruled that the expense of rebuilding the wall was an equitable charge on the wall, and the owner for the time being, exercising his right in the new wall, was equitably bound to contribute ratably to the expense of the necessary reparation. And Dunstan, having purchased with actual notice of the charge or claim, was ordered to pay the moiety of the expense of rebuilding the wall. That decision, which has been approved and followed in many jurisdictions, would seem to be sufficient authority against the contention of the defendant in this case, and we deem it to be the only just and reasonable view to take of the question.

It is not important for us to inquire or to decide. whether an action at law will lie for one-half the cost of erecting the wall, as we have abolished all forms of actions and the distinction between legal and equitable remedies, and a party now recovers according to the allegations of his pleadings. Voorhees v. Porter, 134 N. C., 591; Cheese Co. v. Pipkin, 155 N. C., 394; so that if the.plaintiff has made a sufficient allegation of facts in his complaint to entitle him to equitable relief, the Court will award *90it, without regard to the form or manner in which they are alleged. We think he has done so, and there was proof to establish them, as will appear from the foregoing statement of the facts.

It has been said, though, that indebitatus assumpsit, being of an equitable nature, will lie for an adjoining owner’s share of the cost of building a party wall, and a recovery has been allowed in that form of action. Huck v. Flentye, 80 Ill., 258. A case much like ours in its facts is Rindge v. Baker, 57 N. Y., 209, in which it appeared that' two adjoining proprietors entered into a parol agreement to jointly build a party wall, one-half on the premises of each, and accordingly built a portion of the wall, but one of them refused to proceed with its construction; the other having planned.his building in reliance on the contract being performed,, was held, not confined to his remedy for specific performance, but was permitted to complete the wall and to recover of the other proprietor, in an equitable action, one-half of the expense. To the same effect is Sanders v. Martin, 2 Lea, 213. Numerous authorities sustain the proposition that such a recovery may be had under the equitable principle of contribution, against the defaulting proprietor, or his assignee with notice of the contract, one of the strongest of them being Sharp v. Cheatham, 88 Mo., 498, where the subject is treated exhaustively and with great learning and a copious citation of cases by Justice Sherwood. The effect of such an agreement is to create cross-easements as to each owner, which binds all persons succeeding to the estates to which the easements are appurtenant, and a purchaser of the estate of the owner so contracting would take it burdened with the liability to pay one-half 'the cost of the wall, whenever he availed himself of its benefits. 88 Mo., supra. The language of courts and of judges has been very uniform and very decided upon this subject, and all agree that whoever purchases lands upon which the owner has imposed an easement of any kind, or created a charge which could be enforced in equity against him, takes the title subject tó all easements, equities, and charges, however created, of which he has notice. 88 Mo., supra. Lord Cottenham said, in Tulk v. Moxhay, 2 Phil. (Eng. Ch.), 774: “If an equity is attached to prop*91erty by tbe owner, no one purchasing with notice of that equity can stand in a different situation from tbe party from wbom be purchased.” But although tbe covenant, wben regarded as a contract, is binding only between tbe original parties, yet in order to give effect to tbeir intention it may be construed by equity as creating an incorporeal hereditament (in tbe form of an easement) out of tbe unconveyed estate, and rendering it appurtenant to tbe estate conveyed; and wben this is tbe case, subsequent assignees will have tbe rights and be subject to tbe obligations which tbe title or liability to such easement creates. A purchaser of land, with notice of a right or interest in it existing only by agreement with bis vendor, is bound to do that which bis grantor bad agreed to perform, because it would be uncon-scientious and inequitable for him to violate or disregard tbe valid agreements of tbe vendor in regard to tbe estate of which be bad notice wben be became tbe purchaser. 88 Mo., supra; Spencer’s case, 1 Smith L. C. (6 Ed.), p. 167. See also Spaulding v. Grundy, 126 Ky., 510, and cases cited; Richardson v. Tobey, 121 Mass., 457; 30 Cyc., 788 and 795. It would be useless to multiply authorities, as tbe most of them will be found in tbe cases already cited.

There can be no question but that tbe defendant bad full notice of the transaction wben be bought from Thompson, and is as much affected by tbe equity as Thompson would have been, if be had not sold tbe lot.

Tbe statute of frauds does not apply. Tbe equity arises regardless of any promise except, perhaps, that which is fairly implied by law. 20 Cyc., 282; Pitt v. Moore, 99 N. C., 85; Ray v. Honeycutt, 119 N. C., 510; Tucker v. Markland, 101 N. C., 422. No point was made as to tbe .amount of tbe liability, and it seems that tbe plaintiff recovers less than one-half of tbe amount it cost him to build tbe wall.

We find no error in tbe case.

No error.