Ayling v. Kramer

• Decision Date: 13 May 1882
• Citation: 133 Mass. 12
• Parties: Isaac Ayling v. Mary Kramer
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

133 Mass. 12

Isaac Ayling v. Mary Kramer

Supreme Court of Massachusetts

May 13, 1882

Suffolk.

Exceptions overruled.

J. A Maxwell, for the defendant.

S. W Creech, Jr., for the plaintiff.

Morton, C. J. Lord, Field & C. Allen, JJ., absent.

OPINION

Morton, C. J.

This is an action to recover damages for a breach of the covenant against incumbrances, contained in a deed from the defendant to the plaintiff.

The city of Boston, by its deed dated July 3, 1862, conveyed the land in question to Mary Ann Carter. This deed, after the description and before the habendum, contained the provision that "this conveyance is also subject to the following conditions: 1. All taxes and assessments which have been laid or assessed upon the said premises previous to the execution of this conveyance shall be paid by the said Mary Ann Carter, her heirs and assigns. 2. The front line of the building which may be erected on the said lot shall be placed on a line parallel with and ten feet back from the said Newton Street. 3. The building which may be erected on the said lot shall be of a width equal to the width of the front of the said lot. 4. No dwelling-house or other building except necessary out-buildings shall be erected or placed on the rear of the said lot. 5. No buildings which may be erected on the said lot shall be less than three stories in height, exclusive of the basement and attic, nor have exterior walls of any other material than brick, stone or iron, nor be used or occupied for any other purpose or in any other way than as a dwelling-house, for the term of twenty years from the first day of April, A. D. 1859. 6. And the said Mary Ann Carter shall erect a brick wall along the line of the rear of the above-described land, of not less than five feet above the grade of said passageway as the same shall be hereafter established by the said city. The buildings now standing on the said land conform to the requirements of the foregoing conditions." The land by mesne conveyances came to the defendant, who conveyed it to the plaintiff by a deed containing the usual covenants.

We are of opinion that the so-called conditions in the deed to Carter were not intended or understood by the parties to be technical conditions, a breach of which would work a forfeiture of the estate. They were intended to regulate the mode in which the grantee might use and enjoy the land, and are to be construed as restrictions. Episcopal City Mission v. Appleton, 117 Mass. 326. Skinner v. Shepard, 130 Mass. 180. This same deed was before this court for construction in Keening v. Ayling, 126 Mass. 404; and although the question is not discussed in the opinion, that case...