Kells v. Helm

Citations

• 56 Miss. 700

Syllabus

<p>Party-wall. Lien. Purchaser without notice. Rights of subsequent purchaser.</p> <p>O. and M. were owners of adjacent town-lots. They agreed, verbally, that 0., who wished to build on his lot, might put a wall on the common boundary-line, and that when M. built on his lot he might use this wall, but must then pay 0. half the value thereof; and, in 1866, 0. built accordingly. - In 1867, M. built upon his lot, using the wall erected by 0., but, after the completion of his building, conveyed the lot in trust to secure a sum of money then advanced by G. In 1868, 0. sold his lot to K,, and also assigned his claim against M. for the value of one-half of the party-wall to K. M. and K. agreed, in writing, as to the amount of this claim; that K. was entitled to it as assignee of C.; that M. would pay the same in twelve months; and that K. did not, by that agreement, release his claim on the lot of M., the existence and validity of which were recognized. This agreement was not made till after the deed in trust had been recorded. After the recording of the agreement, M.’s lot was sold, under the deed of trust, to H. & Y. At the time G. advanced the money and took the deed of trust, he had no actual knowledge of C.’s claim, but knew that the wall erected by 0. was used by M. Held, that G-. had the right to presume that M. paid his share of the cost of the wall; and that the agreement between M. and K., being made after the rights of G. had attached under the deed of trust, only operated as a subsequent encumbrance; and H. & Y., having purchased under the senior encumbrance, are entitled to all of the rights of the first encumbrancer, unaffected by the notice which they had at the time of their purchase.</p>