the land he intends purchasing and the land of Department 1. Appeal from Superior Judge. Action by William R. Hawkes against David M. Hoffman and wife. From a judgment for plaintiff, defendants appeal. Reversed and remanded, with instructions. Theo. D. Powell, for appellants. ston & Swindells, for respondent. that in no event shall the party of the second part be liable under the terms of this agreement to pay for more than one-half of the entire cost of said wall, or for more than one-half of what it would cost at the rate paid by the party of the first part for labor build a lawful party wall and foundation to and material used in and upon said wall to sustain a building of the height the party of the second part may from time to time erect. *** "Ninth. The benefits and burdens of the covenants herein contained shall annex to John- and run with the land herein described so long as said wall continues to exist and shall bind the respective heirs, legal representa tives and assigns of the respective parties hereto." The FULLERTON, J. On May 20, 1890, the respondent owned lot 20 in block 1104 in the city of Tacoma, and the Tacoma Land Company, a corporation, owned the adjoining lot, numbered 21, in the same block. parties on that day entered into an agreement in writing, duly acknowledged, by the terms of which the respondent agreed to erect a party wall according to certain specified dimensions and out of certain specified materials one-half upon his own lot and one-half upon the lot of the Tacoma Land Company. The agreement contained the following clauses: "Third. The party of the first part [the respondent in this action] shall furnish and provide all other materials for and shall construct said wall and shall keep a true account of the cost thereof, and before the party of the second part, its successors or assigns, shall use said wall or any part thereof, it or they shall first pay to the party of the first part therefor for each story of said wall or any part thereof purposed to be used as follows: Provided, however, that if the party of the second part, its successors or assigns, shall use only a part of a story, it or they shall pay for the whole of said story. "For the first story one-half of what it would cost to build a lawful party wall and foundation to sustain a one-story building at the rate paid by the party of the first part for labor and materials used in and upon said wall. "For the second story one-half of what it would cost to build a lawful party wall and foundation to sustain a two-story building at the rates paid by the party of the first part for labor and materials used in and upon said wall. "For the third story one-half of what it would cost to build a lawful party wall and foundation to sustain a three-story building at the rates paid by the party of the first part for labor and materials used in and upon said wall. Acting pursuant to the agreement, the respondent in the year 1890 erected a fourstory party wall in accordance with the stipulations therein contained, one-half upon his own property and one-half upon that of his co-contractor, at a cost of $3,261.33, all of which he duly paid. The agreement was not recorded in the record of deeds of Pierce county until February 13, 1909. After the execution of the agreement and the erection of the party wall, but prior to the time the agreement was recorded, the Tacoma Land Company mortgaged its lot to the Provident Life & Trust Company, without referring in any way to the agreement. This mortgage was foreclosed and the property sold by the sheriff of Pierce county under the decree of foreclosure to the Tacoma Land & Improvement Company, which company afterwards received a sheriff's deed therefor. The Tacoma Land & Improvement Company con- . veyed by warranty deed to one George L. Dickson, who, in turn, conveyed by a similar deed to the present appellants. Each of the deeds last mentioned were executed and delivered prior to the time the party wall agreement was recorded, and neither of them contained any reference thereto. Neither the Provident Life & Trust Company at the time it took its mortgage upon the lot nor the Tacoma Land & Improvement Company nor George L. Dickson at the time of their several purchases had any notice or knowledge of the existence of the party wall agreement other than such as is necessarily inferred from the fact of the existence of the party wall, and that one-half thereof stood upon the property purchased by them. The appellants, however, at the time they purchased had full knowledge of the party wall agreement and of all of its terms and conditions. After their purchase, the appellants erected a fourstory building upon lot 21, using the party wall as one of the walls of the new building. Thereafter the respondent brought the pres "For the fourth story one-half of the whole ent action to recover from them one-half the cost of said wall. original cost of the wall. The trial court held that he was entitled to recover and "It being expressly understood and agreed entered judgment accordingly. This appeal though they had actual notice themselves was taken therefrom. During the progress of the cause in the court below the appellants took many exceptions to the rulings of the court relating chiefly to questions of practice. These are urged upon us here, but we find it unnecessary to discuss them in detail. Even were the rulings of the court, in every instance not technically correct, no prejudice resulted to the appellants thereby. No evidence was admitted that was not admissible under the actual issues between the parties, and none was rejected pertinent thereto. The cause is here on its merits, and in such cases this court is required by statute to hear it on its merits disregarding any technical defect which has not operated to the prejudice of the party complaining. Ballinger's Ballinger's Ann. Codes & St. § 6535 (Pierce's Code, § 1083). Passing, then, to the merits of the controversy, the appellants first contend that the party wall agreement is a personal covenant, not one running with the land; that their particular grantor who entered into the agreement personally may be bound thereby, but subsequent purchasers with or without notice are not so bound. This, however, is no longer an open question in this state. In Hoffman v. Dickson, 47 Wash. 431, 92 Pac. 272, 93 Pac. 523, 125 Am. St. Rep. 907, where this very agreement was under consideration, it was held that an agreement of this character was in the nature of a covenant running with the land, and was binding upon the grantees of the respective parties. The conclusion there reached was subsequently approved in the case of Sandberg v. Rowland, 51 Wash. 7, 97 Pac. 1087, where it is said: "On the subject of the payment of the expense of the construction of a party wall, the decisions of the courts have not been uniform. the contrary, there has been an irreconcilable conflict. In New York and Illinois it has been uniformly decided that the payment for a party wall is in no way connected with the land, and that the covenants in regard to the payment of the same or for its use cannot be construed to run with the land. But these are extreme cases, the logic of which does not seem to have appealed to courts generally. In other jurisdictions it has been determined that the right to that portion of a party wall resting on the lot of an adjoining owner is not personal to the owner of the lot on which the building is erected, but one running with the land, and that, therefore, a conveyance of the lot on which the building is erected passes to the grantee the right to recover of the adjacent owner the value of one-half of the wall when used by him." We are satisfied with these holdings, and, if the question be not in fact res judicata, we have no desire to depart therefrom. The right of the appellants to claim the immunity of purchasers without On of the existence of the party wall agreement, it is conceded that their grantor had no such notice, and the rule is that a purchaser with notice from a purchaser without notice may claim any immunity his grantor has because of the fact. "The reason is to prevent a stagnation of property, and because the first purchaser, being entitled to hold and enjoy, must be equally entitled to sell." Chancellor Kent in Bumpus v. Platner, 1 Johns. Ch. (N. Y.) 213. See, also, Stanley v. Schwalby, 162 U. S. 255-276, 16 Sup. Ct. 754, 40 L. Ed. 960; 2 Warvelle on Vendors, p. 606. Nor can it be successfully denied that the appellants, in order to be charged with liability for the costs of the wall, must have had notice, either actual or constructive, of the covenant obligating their grantor to pay. The rule is general that where the owner of a lot erects a wall on the boundary line between his own and the abutting lot, resting partly upon each, no implied obligation is imposed on the owner of the abutting lot to contribute to the costs of the wall upon making use of it. Such an obligation is not implied in law. To exist at all it must be created by specific contract. See note to Dunscomb v. Randolph, 89 Am. St. Rep. 915. It must follow therefrom that one buying without notice of the agreement stands in the position of all innocent purchasers for value. He takes the property without the incumbrance. Are The principal question therefore is: the appellants purchasers with notice? It is conceded that the only notice their immediate grantors had is such as was implied from the fact that the party wall was erected on the dividing line of the lots, and that the owner of the abutting property was making use of the wall to support a building upon his property. This undoubtedly was notice that the wall might be there of right, and that the appellants as purchasers would have no legal warrant to require the removal of the wall as an unwarranted trespass upon their property. But it seems to us that it would be going too far to say that it was notice of anything more. While it is a general rule that one who has notice of facts sufficient to put him upon inquiry is deemed to have notice of all facts which reasonable inquiry would disclose, the rule does not impute notice of every conceivable fact, however remote, that could be learned from inquiry. It imputes notice only of those facts that are naturally and reasonably connected with the fact known, and of which the known fact can be said to furnish a clue. In the language of Judge Wright in Birdsall v. Russell, 29 N. Y. 220: "The rights of a purchaser are not to be affected by constructive notice, unless it clearly appears that the inquiry suggested by the facts disclosed at the time of the purchase would, if fairly pursued, result hidden at the time. There must appear to | attention, and we think none can be found, be, in the nature of case, such a connection in which the existence of such a wall has between the facts discovered and the further fact to be discovered that the former may be said to furnish a clue-a reasonable and natural clue-to the latter." Furthermore, as we have said in discussing another question, no legal obligation to contribute to the cost of a party wall erected on the boundary of his land by the adjacent owner is imposed upon one who merely makes use of the wall. Such an obligation must arise out of contract. It is also the rule that, if one of the owners of a party wall desires to erect a new wall of more extensive dimensions upon the site of the old wall, he cannot compel his co-owner to share the expense with him in the absence of an express contract to that effect, and, if an existing party wall is destroyed by fire, lapse of time, or otherwise, in the absence of a contract requiring the owner to rebuild, the easement is at an end, and there is no obligation resting upon either party to rebuild. Hoffman v. Kuhn, 57 Miss. 746, 34 Am. Rep. 491; Antomarchi's Executor v. Russell, 63 Ala. 356, 35 Am. Rep. 40; Sherred v. Cisco, 4 Sandf. (N. Y.) 480. Again, the erection of a party wall is as much usually for economy in the matter of space as it is for economy in the matter of cost, and contracts are not unusual where the owner of a lot has agreed with the owner of an adjoining lot to erect at his own cost a party wall one-half upon the land of each, and allow the adjoining owner to use the same without contributing to its cost, merely for the sake of the additional space the privilege would give him for his own building. Such, for instance, was the nature of the agreement in the case of Huck v. Flentye 80 Ill. 258, and other instances in the books can also be found. The foregoing considerations, we think, lead to the conclusion that knowledge by an intending purchaser that a wall had been erected on the dividing line of the land he intended purchasing and the land of an adjacent owner is not notice to him that he must contribute to the expense of constructing the division wall in case he made use of it. Such a deduction is too remote from the fact known to legitimately follow therefrom; and the one fact furnishes no natural or reasonable clue to the existence of the other. And, this being true, the appellants in the present case must be considered to be purchasers without notice and not liable to contribute to the expense of constructing the wall in question. But two cases have been called to our attention where this precise question has been decided. The first is from the Supreme Court of South Dakota. In that case the agreement had not been recorded, and it was conceded that the only notice the purchaser scught to be held had at the time of his purchase was the fact of the existence of the party wall. Discussing this question, the been held to give constructive notice of the existence of an agreement binding the owner of an adjoining property to pay a portion of the expense incurred in the erection of such wall, and the only constructive notice that seems to have been recognized by the courts is that imparted by the recordation of the party wall agreement." Mortgage Company v. Russell, 20 S. D. 42, 104 N. W. 607. The second case is from the Supreme Court of Missouri. This case is somewhat peculiar in the fact that the judge writing the opinion reached a conclusion that would require a different judgment from that pronounced by the court, but which was not followed because his colleagues did not concur in his reasoning. The facts were that Roach & Stitt entered into an agreement with one Elliott, by the terms of which they agreed to "place the walls of their building, now in the process of erection, six (6) inches on the lot now owned by the party of the second part [Elliott]; and the party of the second part further agrees that when he shall join said walls he will pay to the party of the first part one half the cost of so much of said walls as he may join to." Roach & Stitt thereupon completed the wall, and thereafter sold their lot to one Cheatham. Elliott conveyed his lot to Sharp, who had no notice of the contract between Roach & Stitt and Elliott other than the existence of the wall might impart. Sharp, after purchasing the lot, erected a building thereon, using the party wall as one of the walls of his building. Cheatham thereupon brought an action to recover one-half the cost of the wall. recovered in the court below, but the judgment was reversed on appeal for the reason that Sharp was a purchaser without notice. Sharp v. Cheatham, 88 Mo. 498, 57 Am. Rep. 433. There are other cases which, although they do not directly decide the question, recognize the principle that notice of a contract by which one lot owner agrees with another to pay a portion of the cost of a party wall erected by the other upon the division line of their property as a condition precedent to using it must be something more than the mere fact of the existence of the party wall. For example, in the case from Sandford's Reports above cited, the judge arguing against the liability of one to pay for a party wall merely because he has made use of it uses this language: "Then what is the effect of his using the party wall? He found it on his land on taking possession. He wanted to build. Was he to tear it down, or insist on the plaintiff's removing the half wall, so that he could occupy his whole land? This he might have done (Wigford v. Gill, Cro. Eliz. 269) to her great injury, and with probably no advantage to himself. Or was he not entirely at liberty to use as his own an erection on the land he had bought without He RUDKIN, C. J., and CHADWICK, MORRIS, and GOSE, JJ., concur. LARA v. PETERSON et ux. Nov. 24, (Supreme Court of Washington. TION-SUFFICIENCY. without his request or knowledge. We think | by his action, and that the appellants recovhe was. We do not see how the defendant er their costs. is liable to pay for half of this wall, because he used it, any more than he would have been liable, if the Duryees had rebuilt before he bought, and had put their beams into the wall without paying the plaintiff for it. Yet the proposition would be at once scouted that the purchaser of a house in this city, having paid to the owner the price, in good faith and without notice, would be liable to the owner of an adjoining house for the unpaid half of the cost of the party wall which separated the two tenements." In Kells v. Helm & Yerger, 56 Miss. 700, the court, speaking on the liability of a grantee to contribute towards the cost of a party wall erected under a contract with his grantor, used this language: "If it be conceded that the appellant acquired a lien on the lot of Miazza by virtue of the assignment by Cooper to him of the claim for one-half of the cost of the wall, it would not follow that this claim could be asserted against these defendants, who are purchasers without notice for a valuable consideration, or hold under the Greens, who were such. The agreement between Cooper and Miazza was never recorded; and it is admitted that the Greens Though the boundary lines of lots varied about 12 degrees from due north and south, a west two feet, and lot 2, less west two feet, tax deed, describing them as, "Lot 1, less the and so on for each of the 28 lots comprising a designated block of a city, excepting lot 6, of feet varying from less the west 1 foot in the the whole of which is described, the number case of lot 3, to less the west 61 feet in the case of lot 28, is sufficient under Laws 1899, p. 301, c. 141, providing that the person at a tax sale offering to pay the amount due on each lot for the least quantity thereof shall be the purchaser of such quantity, which shall be taken from the east side of the lot, etc., as the land sold and the land reserved in each lot may be determined. [Ed. Note.-For other cases, see Taxation, had no actual knowledge of the claim aris- not to identify the land, but to furnish the [Ed. Note.-For other cases, see Taxation, Cent. Dig. §§ 1519, 1520; Dec. Dig. § 764.*] ue." Department 2. Appeal from Superior Court, King County; Arthur E. Griffin, Judge. Peterson and another. From a judgment for Action by Marcellus Lara against John E. plaintiff, defendants appeal. Reversed, with instructions. Wright & Kelleher and Chas. P. Harris, for appellants. John G. Barnes, for respondent. DUNBAR, J. This is an action in ejectment to secure possession of lots 1 to 5, inclusive, and 7 to 28, inclusive, all in block 7 of Maple Grove Park subdivision of East Seattle, King county, Wash. The complaint alleges: That the plaintiff is the owner of said land, describing it; that the defendants are in possession and claiming title by virtue of three certain deeds of conveyance made to the defendant John E. Peterson, by the counThe grantors of the appellants were there- ty treasurer of King county, state of Washfore purchasers without notice of the party ington, purporting to have been executed on wall contract, and as such could not be com- account of sales in tax foreclosure proceedpelled to contribute towards the cost of the ings, which deeds it is alleged are wholly wall, and the appellants, as their grantees, void as far as the above-described property partake of that immunity, and cannot them- is concerned; and that they constitute a selves be held. The judgment appealed from cloud upon plaintiff's title; alleges payment is reversed and remanded, with instructions of taxes, demands, etc., and prays judgment to enter a judgment to the effect that the that plaintiff is the owner in fee simple of respondent, the plaintiff below, take nothing the land described and entitled to the im mediate possession thereof, that the deeds be declared null and void, that plaintiff be permitted to redeem from said tax sale by paying to defendants all taxes, penalties, interest, and costs, etc., and that his title to said lands be declared free and clear of any claims of the defendants or either of them, and for general relief. To this complaint the defendants interposed a general demurrer, which was overruled. Answering, the defendants denied ownership in the plaintiff, and that the possession of defendants was wrongful, and alleged that on the 16th day of October, 1903, in a certain cause pending, judgment was duly and regularly rendered foreclosing certain tax liens on the property described in the complaint, and ordering the sale thereof; that, pursuant to an order of sale duly and regularly issued by said court pursuant to said judgment, the lots in question were sold to the defendants; that the defendants complied with the laws of the state of Washington necessary to entitle them to a deed for said real estate; and that on the 23d day of November the treasurer of King county duly and regularly issued to defendant John E. Peterson three tax deeds, conveying all of the last-described property to the said defendant; alleging the validity of the deeds; and alleging other defenses which, from the view we take of the main question in the case, viz., as to the sufficiency of the description, it is not necessary to set forth or discuss in this opinion. Upon trial the court found that the description in the deed was insufficient to convey right or title to the defendant, and judgment was rendered in favor of the plaintiff as prayed for, so that the material question to be decided here is: Was the description in the deeds from the county treasurer to the defendant sufficient to convey title? that if the statute is to receive such a literal construction it would serve little or no purpose. While there is some conflict in the authorities as to whether revenue statutes should be given a liberal or strict construction, it seems to us that the better rule is that they should receive a fair construction. ***" In Spokane Terminal Company v. Stanford, 44 Wash. 45, 87 Pac. 37, this court said: "* ** And we see no reason now for departing from the rule thus stated. A fair construction should be given to any law, whether it be a law in relation to the col-, lection of taxes or not." It was also said by this court in Ontario Land Company v. Yordy, 44 Wash. 239, 87 Pac. 257, that a description in a deed or other instrument affecting title to real estate is sufficient if it affords an intelligent means for identifying the property and does not mislead. Without further citation of authorities, which almost universally are along the the same line of thought, and especially modern authorities, we think the description in these deeds was sufficient, and that it plainly appears that the intention was to deed to the defendant lot 1 less two feet along the west side of the lot, and so with the other lots described, and that there would have been no difficulty in the purchaser or any one else determining the land sold and the land reserved from the sale in that lot. This is conceded by the respondent; but he is asking for a strict construction of the statute, and claims that, under the literal terms of the statute, the deeds are indefinite. That portion of the statute relating to revenue and taxation in force and applicable to the case at bar is as follows: "The person at such sale offering to pay the amount due on each tract or lot for the least quantity thereof shall be the purchaser of such quantity which shall be taken from the east side of such tract or lot, and the remainder thereof shall be discharged from the lien. In determining such piece or parcel of such tract or lot, a line is to be drawn due north and south, far enough west of the east The description was as follows: "Lot 1, less the west two feet, and lot 2, less west two feet" and so on for each of the 28 lots comprising block 7, Maple Grove Park subdivision of East Seattle, excepting lot 6, in which case the bid was for the whole lot, the number of feet varying from less the western point of tract to make the requisite 1 foot in the case of lot 3, to less the west 61 feet in the case of lot 28. The deeds from the treasurer described the property sold and conveyed in the same language as that in which the bids were made. The lower court decided that, on account of the fact that the boundary lines of the lots varied from due north and south, the deeds were void for indefiniteness of description; the variation being about 12 degrees. It is said by the Supreme Court of the United States in the case of Turpin v. Lemon, 187 U. S. 58, 23 Sup. Ct. 23, 47 L. Ed. 70: "Laws for the collection and assessment of general taxes stand upon a somewhat different footing and are construed with the utmost liberality." And this court, in passing upon this question in Mills v. Thurston County, 16 Wash. 378, 47 Pac. 759, said: "But it is evident quantity." Laws 1899, p. 301, c. 141. It is claimed here that, if the line were drawn due north where the variation is 12 degrees, it would not describe the property intended to be sold, and that consequently the deeds are void for want of definiteness of description. The strict letter of the law lends support to this contention; but regard for the letter of the law to the exclusion of its spirit has not been dominant from the days of the Divine Lawgiver down to the present time, and this law, taken as a whole, when construed with reference to its plain intent, will not bear the strict construction placed upon it by the respondent. The office of a description is not to identify the land, but to furnish the means of identification, and a deed will not be declared void if the land can with any reasonable degree of certainty be |