Plaintiff’s claim must rest either on the act of assembly of February 24,1721, (Purd. Dig. 984,) or on the principles of the common law. The act of assembly applies only to cases where, at the time of the erection of the last house, there are adjoining lots owned by different persons. The second section im-powers the regulators “ to enter upon the land of any person or persons, in order to set out the foundations and regulate the walls to be built between party and party : which foundation shall be laid equally upon the lands of the persons between whom such parly-wall is to be made.”
In the case before us, Philip Justus was the owner of both lots when the first house, now the property of the plaintiff, was built. The wall, therefore, which is called the party-wall in the case stated, was not such, in the sense of that term, in the act of assembly. The sanction of a regulator was not necessary, and I presume was not obtained before the first house was erected. The claim consequently is not supported by the act of assembly.
From the common law it can derive no aid. The sheriff sold the two properties at the same time, allotting to each, one-half of the ground, according to the supposed division of Justus. The defendant’s purchase was of a lot including one-half of the ground on which the wall, called the party-wall, stood. He purchased therefore one-half of this wall. Cujus est solum ejus usque ad cmlum. The plaintiff purchased the other lot with the house erected upon it; the house and half of the party-wall. The case states this expressly,—“ The said brick wall is built upon the line of the said two lots, in the usual way,—half on each.” The defendant, of course, in using as he did, the wall in question, committed no trespass. It was on his own ground, was his own property.
Further; according to Hart v. Kucher, 5 S. & R. 1, the right of reimbursement for the expíense of a party wall, (admitting the wall in question to be properly so designated,) is a personal *249right of the first builder, which may be released by him so as to bind his grantee without notice, and if compensation be made for it to the first builder during his ownership, the claim is at an end, although the adjoining lot should remain unimproved until both properties have passed into other hands. Now in the present instance, Justus owned both lots when the first house was constructed. The right of reimbursement, if it were not a solecism to use such language, was personal to him. And yet he as owner of the adjoining lot, was the hand to pay also. And where the hand to receive and the hand to pay is the same, no debt or claim can arise. It is extinguished eo instanti its creation. In every respect, the case is against the plaintiff.
Judgment for defendant.