The opinion of the court was delivered by
Woodward, J.— That the first builder of a party-wall had but a right of action against the second builder — that it was a mere chose in action, and. did not pass by the first builder’s conveyance of his house and lot; and that a payment by the second builder to the grantee of the first, would not protect him, were conclusions of law ruled and settled in a variety of cases, which are referred to in 10 Barr 155 and 219.
But to alter and change the rule, and to make the first builder’s interest in the party-wall pass by his conveyance, unless expressly excepted, the Act of 10th April 1849 was passed, and its terms are full and ample for the purpose. It provides “ that in all conveyances of houses and buildings the right to and compensation for the party-wall built therewith, shall be taken to have passed to the purchaser, unless otherwise expressed;” and “ the owner of the house for the time being shall have all the remedies in respect to such party-wall as he might have in relation to the house to which this attached.”
This is making the interest to be in law what it always was in fact, an interest in the realty, and not a mere personal right. Root’s conveyance was under this Act of Assembly, for it was made the 25th May 1854, and it passed to his vendee his interest in the party-wall. His previous bill of sale to Dilks & Collins of 2d May 1854, was of no consequence, for it was unrecorded; Beenken had no notice of it; and it was not in form a conveyance of any interest in the realty. Any other judgment than that which the court rendered would have been a fiat nullification of the Act of Assembly.
The judgment is affirmed.