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Cravens Bates for appellant. Moore Moore for respondent.

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Case Summary: McBride Realty Company v. T.A. Grace

Factual and Procedural Background

This is an equity action by plaintiff (respondent) to enjoin defendant (appellant) from attaching the second story and roof of a building under construction on defendant's adjoining lot to the east wall of plaintiff's two-story brick building. A temporary injunction was granted and later made permanent; defendant appealed.

Key factual points found by the trial court and recited by the appellate opinion:

In 1905 plaintiff's predecessors in title (Allen M. Bates and John H. Samples) built a two-story brick building whose east wall was located on the line between the two properties so that six inches of the twelve-inch wall extended onto the adjacent ten-foot strip then owned by Mary J. Elder.
At construction time there was a one-story frame building on Mrs. Elder's ten-foot strip; part of that one-story building was cut back to locate the center line of the brick wall.
James Starks (son-in-law / tenant of Mrs. Elder), Mrs. Elder, and John Samples participated in a conversation in 1905 in which it was agreed that the brick wall could extend six inches onto Mrs. Elder's land and that the one-story frame building could be attached to that wall but should not be built or attached any higher than one story.
Samples built and paid for the brick building and placed second-story windows in the east wall (over the six-inch strip) in reliance on the understanding that the adjoining building would remain one story.
Mrs. Elder died in 1912; her heirs later sold the ten-foot strip to defendant in 1919. Defendant purchased knowing the one-story building was attached to plaintiff's wall and that plaintiff's building occupied a six-inch strip.
The trial court found the oral agreement existed, that it was performed by both parties (taking it out of the Statute of Frauds), and that defendant had notice of plaintiff's rights; the court permanently enjoined defendant from attaching a second story and roof to plaintiff's wall in violation of that agreement.

Legal Issues Presented

Whether the evidence proved an enforceable agreement by Mrs. Elder (defendant's predecessor in title) not to build or attach any structure above one story to the brick wall extending six inches onto her land.
Whether the testimony proving the agreement was admissible and whether the agreement was made with Mrs. Elder personally (or instead with an agent, James Starks) such that the witness was competent despite Mrs. Elder's death.
Whether an oral agreement of this kind, if within the Statute of Frauds, was taken out of the Statute by performance of the parties.
Whether the later purchaser (defendant) is bound by the agreement given plaintiff's possession of the six-inch strip and the visible maintenance of second-story windows in the wall for many years (i.e., whether defendant had notice and was chargeable with inquiry).

Arguments of the Parties

Appellant's (Defendant's) Arguments

There was no sufficient showing of any agreement binding Mrs. Elder, her heirs or assigns, not to attach her building to plaintiff's wall above the first story.
The testimony of James Starks did not clearly and unquestionably establish that Mrs. Elder agreed not to construct above one story; parts of his testimony suggested the agreement might have been between Samples and Starks (i.e., that Starks acted as agent), and because Mrs. Elder was deceased, Starks would be incompetent to testify to an agency-based contract.
Defendant asserted he had no notice of any such agreement when he purchased the land and therefore should not be bound by it.

Respondent's (Plaintiff's) Position

The conversation and agreement in 1905, involving Mrs. Elder, Starks and Samples, clearly established that Mrs. Elder agreed that the one-story building on her land could be attached to plaintiff's wall but should not be built or attached higher than one story.
The oral agreement was performed by both parties (Samples built and paid for the brick building with its wall extending six inches onto Elder's land and Elder's one-story building remained attached as agreed), which removed the agreement from the Statute of Frauds and rendered it enforceable.
Defendant purchased with knowledge that plaintiff was in possession of a six-inch strip of the land and that the wall contained second-story windows for many years; this visible possession and longstanding condition put defendant on inquiry and provided actual notice of plaintiff's rights, making defendant bound by the agreement.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Maupin v. Railway, 171 Mo. 187	Performance takes an oral contract out of the Statute of Frauds.	Cited to support the proposition that because both parties performed the 1905 oral agreement, it became enforceable despite being oral.
Hanson v. Beaulien, 176 N.W. (Minn.) 178, 179	Performance removes an oral contract from operation of the Statute of Frauds.	Used alongside Maupin to justify that the performed oral agreement is binding.
Stone v. K.C. W.B. Ry. Co., 261 Mo. 61, 169 S.W. 88	A purchaser of real estate in the open and visible possession of a third person is chargeable with notice of that third person's title and rights.	Applied to conclude defendant was chargeable with notice because plaintiff occupied a six-inch strip visibly at the time of purchase.
Jones v. Nichols, 280 Mo. 653, 216 S.W. 962	Purchaser in open and visible possession produces notice to a buyer.	Listed among authorities supporting that visible possession charges a purchaser with notice.
Swift v. Buford, 217 S.W. 980; 280 Mo. 432	Rule that visible possession gives notice to subsequent purchasers.	Used as supporting authority that defendant's purchase was with notice of plaintiff's possession.
Widgenhorn v. Daniels, 149 Mo. 160, 50 S.W. 807	Visible possession by a third person charges purchaser with notice.	Cited among cases establishing notice from visible possession.
Titus v. North K.C. Development Co., 264 Mo. 229, 174 S.W. 432	Where land is purchased from one not in possession and purchaser makes no inquiry of those in possession, buyer is not an innocent purchaser for value.	Applied to support that defendant's failure to inquire precludes innocent purchaser status.
Davis v. Wood, 161 Mo. 17, 61 S.W. 695	Failure to inquire of those in possession prevents a purchaser from claiming innocence.	Used with Titus to show defendant was not an innocent purchaser.
Martin v. Jones, 72 Mo. 23	Possession sufficient to put purchaser upon inquiry as to the nature of rights claimed by possessor.	Applied to support that plaintiff's possession of the six-inch strip put defendant on inquiry as to plaintiff's rights.
Freeman v. Moffit, 119 Mo. 280, 25 S.W. 87	Possession may put a purchaser upon inquiry concerning claimed rights.	Cited to show plaintiff's possession tended to show actual notice and warranted inquiry.
Shumate v. Reavis, 49 Mo. 333	Possession tends to show notice to a purchaser.	Used as authority that plaintiff's possession justified finding of actual notice to defendant.
Vaughn v. Tracy, 25 Mo. 318	Possession can be evidence of notice to subsequent purchasers.	Cited in support of the court's notice conclusion.
Dray v. Doyle, 99 Mo. 459, 12 S.W. 287	Possession tends to show actual notice.	Applied with other authorities to uphold the court's finding that defendant had actual notice.
Sharp v. Cheatum, 88 Mo. 498	Where an off-record agreement concerning a party wall was not disclosed, a subsequent purchaser without notice was not bound to perform promises respecting a party wall.	Discussed and distinguished by the court: the facts in Sharp did not control here because the circumstances here (visible possession, windows, and performance) created notice and equity against the purchaser.
Harbor v. Evans, 101 Mo. 661	Case cited in connection with the principle that party/dividing walls do not necessarily contemplate doors or windows.	Cited with approval and followed by reference to Dauenhauer to support that windows are not incident to a party wall and thus their presence gave notice the wall was not a party wall.
Dauenhauer v. Devine, 51 Tex. 480	Holds that a contract for a party or dividing wall obviously did not contemplate doors or windows.	Quoted by the court to conclude that presence of second-story windows suggested the east wall above the first story was not a party wall and that defendant was put on inquiry by this fact.

Court's Reasoning and Analysis

The court proceeded through a multi-step analysis grounded in the record evidence and established legal principles:

Existence and content of the agreement: The court reviewed the testimony of James Starks, John Samples, and the historical facts surrounding construction in 1905. The court found that the conversation among Mrs. Elder, Starks and Samples clearly established that Samples' east wall could extend six inches onto Elder's land, that Elder (or her tenant) could attach a one-story building to that wall, and that the one-story building should not be attached higher than one story. The court applied the rule that proof of such a contract must be clear and convincing, and concluded the evidence met that standard.
Agency/witness competency: The court considered appellant's contention that the contract was made with Starks (as agent) rather than with Mrs. Elder, which would raise a competency problem because Mrs. Elder was deceased. Examining the totality of Stark's testimony (including his repeated statements that the agreement was with his mother-in-law and that she gave him the privilege to build), the court concluded the contract was made with Mrs. Elder personally, not with Starks as her agent. Because Stark was not acting as Mrs. Elder's agent in making the agreement, his testimony was admissible and his competency was not barred by the principal's death.
Statute of Frauds: The court recognized the oral contract was nominally within the Statute of Frauds. However, it found that both parties performed under the oral agreement: Samples built and paid for the two-story brick building with the east wall extending six inches onto Elder's land, and Elder's one-story building was attached thereto and remained as agreed. Citing Maupin v. Railway and Hanson v. Beaulien, the court held performance removed the agreement from the Statute of Frauds, rendering it enforceable.
Notice to subsequent purchaser: The court then addressed whether defendant, who purchased from Mrs. Elder's heirs in 1919, was bound by the agreement. It noted the agreement was off-record and not in the deeds. Applying authorities that a purchaser is chargeable with notice of visible possession by a third person, and that a purchaser who buys from someone not in possession but makes no inquiry is not an innocent purchaser, the court focused on the particular facts: defendant knew plaintiff occupied a six-inch strip when he bought the property and had observed the condition of the property for years, including the presence of second-story windows in plaintiff's wall for about fifteen years. The court concluded those open, visible facts put defendant on inquiry and supported a finding of actual notice of plaintiff's rights.
Equity and final decision: Given Samples' reliance on the agreement (construction of a two-story building, windows placed in reliance on the agreement) and plaintiff's continued possession, the court found it would be inequitable to permit defendant (stepping into Mrs. Elder's shoes) to close the windows or attach a second story in contravention of the earlier agreement. The court distinguished Sharp v. Cheatum on its facts and cited Harbor v. Evans (and Dauenhauer) to explain that windows are not an incident of a party wall and thus their long-standing presence was further evidence that the wall above the first story was not a party wall and that defendant should have inquired.

Holding and Implications

Holding:

Judgment affirmed: the injunction was properly granted and is upheld.

Implications / Direct effects:

The court held the 1905 oral agreement between Samples and Mrs. Elder (defendant's predecessor in title) existed, was performed by both parties, and thereby became enforceable despite being oral.
The court held defendant (the subsequent purchaser) was chargeable with notice of plaintiff's possession and rights, and therefore was bound by the agreement; as a consequence, defendant was enjoined from attaching a second story and roof of his new building to plaintiff's wall in violation of that agreement.
The opinion distinguishes a prior case (Sharp v. Cheatum) on its facts and relies on established rules concerning notice from visible possession and the effect of performance on the Statute of Frauds. The court did not purport to establish a novel legal rule beyond applying these principles to the facts; the decision's effect is to affirm the injunction in this particular factual setting.

Judgment affirmed. Opinion by FRANK, C.; PER CURIAM adopting the opinion; Williams, C., concurs; Trimble, P.J., absent.

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McBRIDE REALTY COMPANY, RESPONDENT, v. T.A. GRACE, APPELLANT. Corpus Juris-Cyc. References: Agency, 2CJ, section 727, p. 954, n. 83; Appeal and Error, 4CJ, section 2571, p. 673, n. 23; Frauds, Statute of, 27CJ, section 131, p. 193, n. 85; section 413, p. 326, n. 36; Injunctions, 32CJ, section 581, p. 350, n. 76, 77; Vendor and Purchaser, 39Cyc, p. 1746, n. 87; p. 1748, n. 3; p. 1785, n. 11.

1. — Injunction. Evidence held to justify finding that defendant's predecessor in title entered into agreement with plaintiff's predecessor that shop on defendant's property which was attached to building on plaintiff's property should not be built or attached higher than single story, in plaintiff's action to enjoin defendant from attaching second story and roof of new building on defendant's property to wall of adjoining building owned by plaintiff.

2. — Party Walls. To establish contract of owner of property that his building shall not be attached to wall of adjoining building above first story, must be clear and convincing.

3. — Appeal and Error. Reviewing court must consider all of evidence in determining whether contract respecting use of property was entered into with property owner or with another as his agent. 4. — Witnesses. In suit to enjoin defendant from attaching second story of new building on defendant's property to wall of adjoining building owned by plaintiff, in which plaintiff relied upon testimony of witness concerning oral agreement not to attach building on defendant's property to plaintiff's wall at a height above first story, evidence held to establish that contract was entered into with defendant's predecessor in title personally and not with witness as her agent, so that witness was not disqualified by death of defendant's predecessor.

5. — Principal and Agent. That witness was present and participated in conversation between property owners regarding attachment of building to adjoining wall did not prove that witness acted as agent of owner of building though witness had erected building.

6. — Frauds, Statute of. Oral contract of property owner not to attach building on her property to adjoining wall above first story held within Statute of Frauds.

7. — Same. Oral contract held taken out of Statute of Frauds as result of performance by both parties, where predecessors in title of both plaintiff and defendant entered into contract, whereby defendant's predecessor agreed not to attach building on her property to adjoining wall of building of plaintiff's predecessor at point above first story, and in accordance with contract plaintiff's predecessor built brick building with wall extending six inches into adjoining property of defendant's predecessor, whose one-story frame building was attached thereto and both buildings so remained since that time.

8. — Vendor and Purchaser. One who purchases real estate in open and visible possession of third person is chargeable with notice of title and right of third person.

9. — Same. Purchaser of land from one not in possession who makes no inquiry of person in possession as to ownership or claims to property is not innocent purchaser for value.

10. — Same. Plaintiff's possession of six-inch strip of defendant's land on which wall of plaintiff building was located, though it was not as matter of law, notice to defendant of contract under which plaintiff claimed possession of the strip, put defendant on inquiry as to the nature of plaintiff's rights, tended to show actual notice and was sufficient to justify finding of trial court that defendant had actual notice of plaintiff's rights at the time of defendant's purchase in suit to enjoin defendant from attaching second story of building on his property to plaintiff's wall under contract between parties' predecessor in title.

11. — Injunction. Plaintiff held entitled to injunction restraining adjoining property owner from attaching second story and roof of new building on defendant's property to wall of plaintiff's building, in violation of contract entered into between predecessors in title of parties, where plaintiff's possession of part of defendant's property by extension of wall was known to defendant on his purchase and erection of building by plaintiff's predecessor and construction of windows in wall on second floor proceeded on faith of contract and with knowledge and consent of defendant's predecessor.

12. — Party Walls. Where defendant purchased property knowing that for a period of fifteen years windows had been maintained in wall of plaintiff's adjoining building above first story, defendant had sufficient notice that wall over first story was not party wall, and was put on inquiry concerning plaintiff's rights to maintain wall and windows.

FRANK, C.

This is an action by plaintiff, respondent here, to enjoin defendant from attaching the second story and roof of a building under process of construction, to the wall of an adjoining brick building owned by plaintiff. A temporary injunction was granted, and on final hearing was made permanent. Defendant appealed.

The facts are as follows.

Plaintiff owns the middle twenty feet of lot 7 in block 6, original town, now city of Excelsior Springs in Clay county, Missouri, upon which there is a two-story brick building extending the full length of the lot. This building was erected in 1905 by Allen M. Bates and John H. Samples, plaintiff's predecessors in title.

Defendant owns a strip of ground ten feet wide adjoining plaintiff's land on the east. The east wall of plaintiff's building is twelve inches wide and is located on the line between plaintiff and defendant's property, thus locating one-half or six inches of the wall on defendant's land. The wall was constructed and paid for by plaintiff's predecessors in title. Windows were constructed in this wall in the second story of the building, at the time the building was constructed, for the purpose of giving light and air to the rooms in the second story. There are no windows in the wall in the first story of the building. At the time plaintiff's building was constructed, the ten-foot strip of ground now owned by defendant was owned by one Mary J. Elder. Mrs. Elder died in 1912, leaving as her only heirs, her husband and one daughter, a Mrs. Starks, who inherited the ten-foot strip of ground and afterwards sold and conveyed it to defendant in 1919.

At the time plaintiff's building was built, there was a one-story frame building on the ten-foot strip of ground now owned by defendant. A part of this frame building was sawed off in order that the center line of the twelve-inch wall might be located on the line between the two properties. At the time this work was being done, Mary J. Elder, who was the owner of the ten-foot strip of ground with the frame building thereon, knew what was being done, and saw and observed the work as it progressed.

James Starks, a son-in-law of Mrs. Elder, testified that in 1905, before plaintiff's building was built, he, Mrs. Elder and John Samples had a conversation in which it was agreed that the east brick wall of the two-story brick building now owned by plaintiff, should be located six inches over the line, and Mrs. Elder, or Starks who was then her tenant, should have the right to attach the roof of the one-story frame building to the brick wall, but the one-story building should not be built or attached any higher.

Defendant testified that he never heard of this agreement until two or three years after he purchased the ten-foot strip; that he bought the property in 1919, and, at that time, the one-story frame building thereon was attached to the brick wall; that he had known the property for ten or fifteen years before he bought it, and during that time it was in the same condition as when he purchased it; that he knew at the time he bought the property, that one-half, or six inches, of the east wall of plaintiff's building was located thereon.

John Samples, plaintiff's predecessor in title, built the two-story brick building in 1905. He testified that he always openly claimed the east wall of the building and the right to maintain it. He also testified that he always claimed that, Mrs. Elder, defendant's predecessor in title, had no right to attach her building to this wall above the first story.

The various deeds conveying these properties, do not mention any agreement with reference to the brick wall or the rights of the parties therein.

Contention is made that the court erred in giving judgment for plaintiff, because there was no showing of any agreement binding Mrs. Elder, her heirs or assigns, not to attach her building to plaintiff's wall above the first story.

James Stark, a son-in-law of Mrs. Elder, testified on this subject as follows:

"Q. State the substance of any conversation you had with Mrs. Elder that you can recall about your making arrangements for this wall to be put over. A. Well, she gave me the privilege of putting the building up there, putting it up and I was to tie onto these people.

"Q. What did she say to you about making arrangements with them, if any? A. We made arrangements with Mr. Samples.

"BY THE COURT: Who made the arrangements? A. My mother-in-law and myself.

"Q. Now you said you heard a conversation — was present at a conversation between yourself and Mrs. Elder and Mr. John Samples. Where was that? A. That was right there in front of the building.

"Q. You may go ahead and state in substance what was said about putting the wall over six inches and about the arrangement that was made. A. That it could come over six inches and I could tie onto them. When the building on the other side was put on, Mr. Holman put my roof on and I was to build my ends up.

"Q. Why do you say `I'? You say the arrangement was `I'. You speak of your doing it. A. Well, I put the building in and I was only to go up just so high with it so I could have a barber shop.

"BY THE COURT: Did you put the building up yourself? A. Yes, sir.

"Q. How high were you to build the building? A. Just about one story, just so I could have room for a shop there.

"Q. And what if anything was said about your right or whether you could or could not go higher than one story with the building? A. I wasn't to go any higher.

"Q. You say that Mrs. Elder was present at the time that was made between you and Mr. Samples? A. Yes, sir."

The contention made on this point is (1) that the evidence of witness, Stark, does not clearly and unquestionably show that Mrs. Elder agreed not to construct her building higher than one story, and (2) that the contract, if any, was made between Stark and Samples, and Mrs. Elder being dead, Stark was not a competent witness to show that Mrs. Elder authorized him to make such contract on her behalf.

We do not agree with the contention that the evidence is insufficient to show that Mrs. Elder agreed not to attach her building to plaintiff's wall above the first story. Mrs. Elder, Stark and Samples all participated in the conversation which resulted in the making of the contract. The clear meaning of Stark's testimony is that the wall of Samples' building could extent six inches over on Mrs. Elder's land, and that the one-story barber shop on her land could be attached to the wall of the first story of Samples' building, and that the barber shop would not be built or attached higher than one story. No other conclusion could be legitimately and fairly drawn from this evidence. We recognize the rule that evidence to establish a contract of the character in question, must be clear and convincing, and we think the evidence in this case measures up to that rule.

Neither do we agree with appellant's contention that Samples made the contract with Stark and not with Mrs. Elder, the owner of the land. Some answers made by Stark, if disconnected from the remainder of his testimony, would lend color to appellant's contention that Samples made the contract with Stark and not with Mrs. Elder, but considering all of his evidence, which we must do, it clearly shows that the contract was made with Mrs. Elder and not with him.

When asked what the arrangement was with reference to putting the wall of plaintiff's building six inches over Mrs. Elder's land, his answer was, "That it could come over six inches and I could tie onto them." He was then asked, "why do you say, `I'? You say the arrangement was `.' You speak of your doing it." His answer was, "Well, I put the building in and I was only to go up just so high with it so I could have a barber shop." This answer shows that his reason for using the word "I" was not because the arrangement or contract was made with him, but because he built the building on Mrs. Elder's land. Following this answer, the court asked the witness, "Was that a contract with you then, all the time?" His answer was, "With my folks, my mother-in-law." Stark testified that his mother-in-law, Mrs. Elder, gave him the privilege of building a barber shop on her land and he was to tie it to the wall of plaintiff's building. He was then asked, "What did she say to you about making arrangements with them, if any?" His answer was, "We had made the arrangements with Mr. Samples." He was then asked, "Who made the arrangements?" His answer was, "My mother-in-law and myself." The fact that Stark was present and participated in a conversation between Samples and Mrs. Elder which resulted in the making of the contract, does not prove that Stark acted as the agent of Mrs. Elder and made the contract for her, especially so, in the light of his testimony that the contract was with his mother-in-law. It is our conclusion that the evidence shows that Samples made the contract with Mrs. Elder and not with Stark as her agent. If Stark did not make the contract for Mrs. Elder, then it is not necessary to determine the contention that he was not a competent witness to show that he was authorized to make it. Stark was not a party to the contract or cause of action at issue and on trial. He did not make the contract as agent for Mrs. Elder. In this situation the death of Mrs. Elder did not disqualify him as a witness.

Contention is made that the court erred in holding that defendant had knowledge of the oral agreement relative to the east wall of plaintiff's building, and that such agreement was binding on defendant.

The oral contract, when made, was within the Statute of Frauds, and, therefore, non-enforcible. Pursuant to the making of the contract, it was performed by both parties. Samples, plaintiff's predecessor in title built and paid for the two-story brick building, the east wall of which extended six inches over on Mrs. Elder's land. The one-story frame building on Mrs. Elder's land was attached to this wall. All this was done in 1905, and both buildings have so remained since that time. The performance of the oral contract by both parties, took it out of the operation of the Statute of Frauds, the result of which was to render the contract binding on both parties thereto. [Maupin v. Railway, 171 Mo. 187; Hanson v. Beaulien, 176 N.W. (Minn.) 178, 179.]

The next question is whether or not the contract is binding on appellant, a subsequent purchaser of Mrs. Elder's property.

The contract, being oral, necessarily did not appear of record, neither is it mentioned in any of the deeds conveying the property. Appellant testified that he never heard of this contract until two or three years after he bought the property from Mrs. Elder's heirs. The contention is that appellant is not bound by the oral agreement because he had no notice of it.

Appellant testified that he had known the Elder property ten or fifteen years before he bought it in 1919; that during all of that time the property was in the same condition as when he purchased it; that at the time he purchased it, he supposed that the wall of plaintiff's building was six inches over on his property because he had only nine feet in the clear.

Under appellant's own evidence, he knew at the time he purchased the property, that plaintiff was in possession of a six-inch strip along the entire east side thereof, and had the east wall of his building located thereon. In other words, when appellant purchased the property he knew, at that time, that plaintiff was in possession of a part of it.

One who purchases real estate in the open and visible possession of a third person is chargeable with notice of the title and right of such third person. [Stone v. K.C. W.B. Ry. Co., 261 Mo. 61, 169 S.W. 88; Jones v. Nichols, 280 Mo. 653, 216 S.W. 962; Swift v. Buford, 217 S.W. 980, 280 Mo. 432; Widgenhorn v. Daniels, 149 Mo. 160, 50 S.W. 807.] Where land is purchased from one not in possession, and the purchaser makes no inquiry of those in possession as to who owns or claims the land, the buyer is not an innocent purchaser for value. [Titus v. North K.C. Development Co., 264 Mo. 229, 174 S.W. 432; Davis v. Wood, 161 Mo. 17, 61 S.W. 695.]

Plaintiff's possession of the six-inch strip of land on which his wall was located, was not, as a matter of law, notice to appellant of the contract under which plaintiff claimed such possession, but it was sufficient to put appellant upon inquiry as to the nature of plaintiff's rights (Martin v. Jones, 72 Mo. 23; Freeman v. Moffit, 119 Mo. 280, 25 S.W. 87), tended to show actual notice, and was sufficient to justify the court in finding that appellant had actual notice of plaintiff's rights at the time he purchased. [Shumate v. Reavis, 49 Mo. 333; Vaughn v. Tracy, 25 Mo. 318; Dray v. Doyle, 99 Mo. 459, 12 S.W. 287.]

Our conclusion is that Mrs. Elder's agreement not to attach her building to Samples' wall above the first story, was binding on her. On the faith of this contract Samples took possession of the six-inch strip, with the knowledge and consent of Mrs. Elder, expended money in the erection of a two-story brick building, constructed windows in the wall which stood on the six-inch strip, for the purpose of giving light and air to the office rooms on the second floor, believing as he had a right to believe, that Mrs. Elder would not close the windows by erecting a second story on her building and attaching it to his wall, because she had agreed that she would not do so. Plaintiff now owns the building built by Samples. It would be inequitable to permit appellant, who stands in the shoes of Mrs. Elder, to injure plaintiff, by doing that which Mrs. Elder agreed should not be done.

Defendant places much reliance on the case of Sharp v. Cheatum, 88 Mo. 498. In that case owners of adjoining premises made an agreement whereby one was to build a party wall, and the other, when he should use it in the construction of a building on his lot, was to pay one-half the cost of such wall. A building was constructed by one of the parties, with the wall on the line between the properties. Later the other party sold and conveyed his lot, and the purchaser erected a building thereon and joined and connected it with the party wall which had been built by the other party, and refused to pay one-half the cost of the party wall, on the ground that he had no notice that his predecessor in title had agreed so to do, in event a building on the lot he purchased should be attached to it. This agreement was not of record. The court held that the subsequent purchaser was not liable, because he purchased without notice of the agreement. The facts in the instant case do not bring it within the rule announced in Sharp v. Cheatum, supra.

Speaking to a kindred question in Harbor v. Evans, 101 Mo. 661, our Supreme Court cited with approval the case of Dauenhauer v. Devine, 51 Tex. 480, where it was held that a contract for a party or dividing wall between two buildings obviously did not contemplate doors or windows.

If windows are not an incident to a party wall, it must necessarily follow, that when defendant purchased his property, knowing at the time, that for a period of fifteen years windows had been maintained in the east wall of plaintiff's building, above the first story, such facts were sufficient notice to him that this wall, above the first story, was not a party wall, and he was put upon his inquiry concerning the right of plaintiff to maintain the wall with the windows therein.

As the judgment must be affirmed for the reasons already stated, we will not determine the contention that plaintiff acquired by perscription an easement and right to maintain the wall with the windows therein. Judgment affirmed. Williams, C., concurs.

PER CURIAM:

The foregoing opinion by FRANK, C., is hereby adopted as the opinion of the court. All concur, except Trimble, P.J., absent.

McBRIDE REALTY CO. v. GRACE