The action was brought to compel the specific performance of a contract whereby the defendant purchased a piece of property known as Ho. 530 East Twelfth street in the city of Hew York. By the contract the plaintiff agreed “to sell, grant and convey unto the said party of the second part (the defendant) the houses and lot being and known as Ho. 530 East Twelfth street in the city of Hew York, the size of lot being 25 feet in width front and rear by .100 feet in depth, be said dimensions more or less.” Five hundred dollars was paid to .the plaintiff upon the signing of the contract. At the time fixed for the delivery of the deed the plaintiff tendered a deed to the defendant, which the defendant refused to accept, his reason being “ simply that the house is not as represented.” The plaintiff then demanded payment of the balance of the consideration money ($700), the ground assigned by the counsel for the defendant’s testator at the time being “We won’t accept title to your house ; ” that “ the house didn’t seem to be in condition the way he agreed about the wall on the westerly side. He said it was a beam right. He said that our house had our beams into the ■ other man’s wall, which was a beam right, and he didn’t want it.” It was not disputed but that the plaintiff had a good title to a lot of land known as Ho. 530 East Twelfth street, 25 feet in width -front and rear by 100 feet in depth; but the objection made to'the title by the defendant’s testator was that the westerly wall of the house, thei wall between Hos. 528 and *429530, and upon which the beams of both houses rested, was not upon the property of the plaintiff, and for that reason the plaintiff could not give to the defendant a good title to the house as it existed, the plaintiff having no title to the wall of the house to the west.
It is conceded by the plaintiff that the westerly wall of the house sold by him is entirely upon the lot adjoining on the west. Such wall is not upon the plaintiff’s property, nor does the conveyance to- ' him in terms convey the title to the property upon which this wall adjoining on the west stands. It was proved, however, that these two houses had been erected about thirty years, and that during that time they had been in substantially the same condition as they were at the time of the execution of the contract and tender of the deed. It was shown that during all that time this wall had been in effect used as a wall to both premises. It supported the beams of both houses, the westerly wall of the plaintiff’s house and the wall adjoining on the west. I think it clear that if one person had been- the owner of both lots, Hos. 528 and 530, a,nd had built these buildings as they existed at the time of the signing of this contract, and then had sold the buildings to different persons without mentioning the. existence of this common wall, a party wall agreement would have-been implied, so that this common wall in use by both buildings would have been a party wall, and I think it also clear that from the uninterrupted use of this wall by the owners of both houses and lots for a period of twenty years, where neither of the owners was. under any disability, and where neither' owner recognized the right of the other to the exclusive ownership of the wall, there would ariscan implication of a contract or grant by which this wall would become a party wall.
One of the definitions of a party wall is a wail which belongs, entirely to one of the adjoining owners, but is subject to an easement or right in the other to have it maintainéd as a dividing wall between the two tenements. (See 18 Am. & Eng. Ency. of Law, 3.)
In the case of Rogers v. Sinsheimer (50 N. Y. 646), Sinsheimer,, the owner of two adjoining lots, built thereon two houses separated by a party wall and conveyed the easterly lot to the plaintiff’s grantor and the westerly lot to the defendant’s grantor, the entire wall separating the two houses being upon the easterly lot. The deed made no reference to the party wall. The court held that the *430wall was a party wall and that the premises. upon which the • wall was built were charged with a servitude of having the' wall stand as an exterior wall to the defendant’s house, and as a support to its beams so long at least as the buildings should endure, and that. this servitude was both continuous and apparent, being one which would be discovered on an inspection of the premises by one reasonably familiar with the subject, and that on the severance of the two houses, the grantee of the westerly lot acquired an easement corresponding with the servitude to .which the easterly lot was subject. The court having held that an implied! grant arose because of -the severance of the two buildings, although no mention was made óf a party wall in the conveyances, and although a space of two inches existed between the wall and the commencement of the lot which was the dominant tenement, it is clear that the same principle would apply where there had been open and notorious possession of the premises for a period of twenty years, and in which case the existence of a grant would be implied, neither of the owners of the adjacent premises being under any disability. See 18 Am. & Eng. Ency. of Law, 8, where it is said: “ The continuous use of a wall, by adjoining owners, as a party wall for the prescriptive period, raises the presumption of a contract between the parties.” See, also, Schile v. Brokhahus, 80 N. Y. 614; Eno v. Del Vecchio, 4 Duer, 53.
The contract provided that the plaintiff should convey to the defendant’s testator the fee of a lot twenty-live feet in width front and rear by one hundred feet in depth. It is conceded that the plaintiff has a good title to such a lot of land. The contract, however, also provided for the conveyance of the building as it existed upon the lot which would include the right to have a building with four walls, and which, so long as that building existed, would continue to have four walls. There is no dispute but thatthe building has at present four walls, and if it appears by uncontradicted testimony, and beyond a reasonable doubt, that the plaintiff has the right to use the building as it exists,, with the four walls as they now exist, as long as he wishes to use them, then the plaintiff had a good title to the premises that he agreed to convey, and the defendant was bound to accept the deed tendered. We have seen that this wall between the premises was actually a party, wall and that a grant of *431a party wall right, or a contract creating a wall a party wall, will be implied, although the wall is totally uj)on the adjoining property, by its continuous use for a prescriptive period. The remaining question is whether upon the facts of this case the evidence of such continuous use of the wall as a party wall was so conclusive as to require the court to compel the parties to specifically perform their contract.
We have lately examined the question of the nature of the evidence to justify the court in an action for specific performance in compelling a purchaser to take title where the title is founded upon adverse possession, and we there held that a continuous possession of the premises for thirty-two years was not sufficient, but that the vendor was bound to show in addition that the person in whom the legal title was vested was. not under such a disability as would j>re-vent the title from vesting by adverse possession. In this case, I think that there was such evidence. The question is whether or not there was such continuous use of this .wall as a party wall for such a length of time as would justify the implication of a contract or grant. The evidence is that the property adjoining the plaintiff’s property is now owned by one Magdalena Boehner, who was called as a witness. She testified that, in 1867, she married one Clemens Boehner, who was the grantee of the deed conveying the premises Ho. 528 East Twelfth street, which deed was dated and recorded March 22,1867. The witness testified that she was married in 1867 to the grantee of the deed; that her husband remained such owner until 1884, when he died; that he gave the property to his wife by his last will and testament, and that since his death the witness has lived in the premises and has occupied them continuously, and that the walls of the building had remained in the same condition that they are at the present time from the time of her marriage to the defendant in 1867 to the time of the trial. We have here express evidence of the owner of the adjacent property that such owners were of full age and under no disability for a period of twenty-nine years, during which there was a continuous use of this wall by the adjoining owners as a party wall. Under such circumstances, it seems to me clear that there was an implication of a grant or contract creating this wall a party wall, as long as the building upon the lot of the plaintiff existed.
*432The judgment should,- therefore, be reversed and judgment directed for the plaintiff,, with -costs.
Williams, J., concurred.
Judgment affirmed, with costs.