Bill in Equity to Enjoin Use of Party-wall, without Contribution r

Appeal from the Chancery Court of Montgomery.

Heard before the Hon. H. Austill.

The bill in this case was filed on the 15th August, 1879, by Mrs. Preiss, against Mrs. T. R. Parker and her husband, James Parker ; and sought to enjoin and restrain the defendants from using, in the erection of a brick store on a lot in the city of Montgomery which belonged to Mrs. Parker, a wall which the.complainant had built in the erection of a store on the adjoining lot, which belonged to the complainant. The complainant bought her lot from David Benjamin, and received a conveyance from him dated the 15th August, 1877 ; and she built a brick store-house on said lot during the year 1878. The bill alleged that, on the erection of this house,” by an agreement and understanding with DeWitt C. Taylor, who was then the owner in fee of the east half of said lot No. 4, that your oratrix should erect upon the east side of said west half of said lot a party-wall, six inches thereof resting upon the east half of said lot, she built said party-wall as above stated and agreed on.” Mrs. Parker afterwards bought the east half of said lot from said D. C. Taylor, his conveyance to her being dated the 30th August, 1878, and containing full covenants of warranty. The bill alleged that Mrs. Parker “ has commenced the erection of a brick house on the east half of said lot so purchased by her, and threatens to use' the said party-wall as a support for said building, and as a support for the sleepers of said building now in course of erection. Tour oratrix has forbidden the use of said party-wall by said T. E. Parker, unless she first pays for such use, and has demanded payment for such use of said wall ; and she has failed and refused to pay the same, and is still proceeding to rest the sleepers of said building upon said party-wall, and to use said wall as a support for her said building, without the consent, and against the remonstrance of your oratrix.” The bill alleged, also, that the cost of the party-wall was $460 ; that the defendants owned no property except what belonged to Mrs. Parker’s statutory separate estate ; and that the complainant was remediless in the premises, and would lose the value of one-half of the wall, unless the defendants were enjoined as prayed. The prayer of the bill was, that the defendants be enjoined and restrained from the further use of the party-wall, “ until your oratrix is paid for such use of said wall,” and for general relief.

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