Page:United States Reports, Volume 1.djvu/354

Rh 

1788.

by deeds of bargin and fale, the ufage was recognized by the Court, and the adjudged to the obligatory. Lloyd's Leʃʃon verʃus Taylor ant. 17.–In the cafe at bar, it is proved to have been the general ufage, not to value the party wall till the fecond houfe is built; and, even then, it if frequently delayed for feveral years ; fo that it muft neceffarily be inferred, that the ufage extends to make the purchafor of the fecond houfe, as liable as the perfon who built it, for the moiety of the partition ; of which, indeed, all the pofitive evidence has been given, that the nature of the cafe affords.

For the Deƒendant two points were made.–1ft. That the action could not be maintained at common law. And 2d. That it was not authorized by the Act of Affembly.

1. On the firʃt point, it was obferved, that bona ƒide purchafors for a valuable confideration are highly favored in law ; 2. ''Black. Com.'' 247. and of thefe, purchafors under an execution are the moft efteemed; infomuch that if the execution is afterwards fet afide for irregularity, they fhall neverthelefs hold the lands. 2 ''Bac. Abr.'' 370. 1State Laws 52. Purfuing this regard for honeft purchafors, if a Truftee fells truths lands for a valuable confideration, without giving notice of the truft, the law declares that the buyer fhall hold the lands difcharged. ''Caʃ. temp. Tath'' 260. and even if a man purchafor for a valuable confideration with notice of a fettlement, from one who bought without notice, he fhall fhelter himfelf under the firft purchafor. 1 Atk. 571. The Defendant is a bona ƒide purchafor under an execution, for a valuable confideration, without notice of the Plaintiff's demand : He is, therefore, in all refpects within the benefit of thefe authorities, and ought not to be made refponfible for the negligence of the Plaintiff, who had it in his power to recover from the original owner of the houfe, who knew of the fales, who never gave notice of his claim at the times of fale and who has fuffered fo long a period to elapfe before he made a demand, as to juftify a prefumption, that, whatever was due, has been paid. Cowp 109. It, indeed, a man will ftand bie at the time of fale, and not difclofe his lien, the law deems him guilty of a fraud, and poftpones his right to that of the purchafor. 2 Atk. 83. ''Gilb.Eq. Rep.'' 85. 1 Veʃ. 94. In the prefent cafe particularly, it would be highly dangerous, if the rule were otherwife for there is no record, as in the cafes of mortgages and judgments, to which a man can refer in order to afcertain the incumberances that will thus affect his purchafe ; nor is there any means by which a remote purchafor can fhew that the lien had been difcharged by his predeceffors.

It is evident, then, that a lien of this kind can only be created by the operation of law, or the act of the parties. It is not pretended that the Defendant is liable from his own act ; for, he neither built the houfe, nor affirmed to pay the money ; and, when the Plaintiff would avail himfelf of a ufage, it is incumbent upon him to make ftrict proct of its exiftency ; which he has failed in doing upon this occafion,