Baker v. Hall

• Decision Date: 03 March 1893
• Citation: Baker v. Hall, 158 Mass. 361, 33 N. E. 612 (Mass. 1893)
• Parties: BAKER v. HALL.
• Court: Supreme Judicial Court of Massachusetts

158 Mass. 361

33 N.E. 612

BAKER v. HALL.

Supreme Judicial Court of Massachusetts, Suffolk.

March 3, 1893

At the trial, plaintiff introduced the following agreement: "Agreement made this 11th day of MarchA.D.1891, between Seth R. Baker, of Boston, in the county of Suffolk and commonwealth of Massachusetts, of the first part and Newbert J. Hall, of said Boston, of the second part.The party of the first part hereby agrees to sell, and the party of the second part to purchase, or cause to be purchased, a certain estate situated on Beacon street, in the town of Brookline, in said commonwealth, and comprising 2,925 square feet of land, with a frontage on said Beacon street of 29 feet and 3 inches, and 100 feet deep, all as per sketch.On the easterly side of said lot a strip of land 4 feet and 3 inches is to be kept open, forever, for light, air, passage and drainage, for the benefit of this lot, and for the grantor, his heirs and assigns; and the grantor agrees to restrict a strip of land 4 feet and 3 inches wide on his adjoining land, for the uses, as above, of the first-mentioned lot, and for himself, his heirs and assigns agrees that the same shall always be kept open.

(Image Omitted)

"Said premises are to be conveyed on or before April 16th, 1891, by a good and sufficient warranty deed of the party of the first part, conveying a good and clear title to the same, free from all incumbrances except sewer assessments; and for such deed and conveyance the party of the second part is to pay the sum of eighty-six hundred and fifty dollars, of which three hundred dollars have been paid this day, seventeen hundred dollars are to be paid in cash upon the delivery of said deed, and the remainder is to be paid by the note of the party of the second part, dated day of delivery of deed, bearing interest at five per cent. per annum, payable in or within three months from date, and secured by a power of sale mortgage, in the usual form, upon the said premises.Provided a release cannot be obtained from present mortgagee to complete transfer, as above, the interest shall be allowed said Hall at the rate of 5 per cent. per annum, until such release is obtained, from April 16th, 1891; other terms and conditions remaining the same.Full possession of the said premises, free of all tenants, is to be delivered to the party of the second part at the time of the delivery of the deed; the said premises to be then in the same condition in which they now are, reasonable use and wear of the buildings thereon, and damage by fire or other unavoidable casualty, excepted.The deed is to be delivered, and the consideration paid, at the registry of deeds in which the deed should by law be recorded, at twelve o'clock noon, on or before the 16th day of April, 1891, unless the parties hereto agree in writing to some other time and place.If the party of the first part shall be unable to give title, or to make conveyance, as above stipulated, any payments made under this agreement shall be refunded, and all other obligations of either party hereunto shall cease; but the acceptance of a deed and possession by the party of the second part shall be deemed to be a full performance and discharge hereof."

The land described in the agreement was part of a larger tract, on which there were two mortgages, viz. a first mortgage, of $30,000, to one Allen, and a second mortgage, of $40,000, to one Andrews; and there was evidence that defendant was fully informed thereof, and also informed that it might not be possible to obtain a partial release of the first mortgage on the premises to be conveyed to him prior to April 16th, and that in consequence of this doubt there was written into the agreement the provision that, if a release could not be obtained to complete transfer, interest was to be allowed defendant at the rate of 5 per cent. per annum, until such release was obtained, from April 16, 1891.There was also put in evidence a deed from plaintiff to Hannahetta C. Cogswell, dated ------- day of ------, 1891, and acknowledged April 16, 1891, by the grantor, before Henry W. Savage, a justice of the peace.The descriptive portion of said deed was as follows, viz."A parcel of land situated in Brookline, in the county of Norfolk and said commonwealth, being lot A on a plan made by A.H. French, dated April 3, 1891, to be herewith recorded, bounded southerly on Beacon street, 2925-100 feet, westerly on land now or late of Freeman 100 12-100 feet; northerly on land now or late of Bates, 29 25-100 feet, easterly on lot B on said plan, by a line through the middle of a passageway, 100 23-100 feet.The passageway, 8 50-100 feet wide, shown on said plan, is to be forever kept open, for light, air, drainage, and passage, for the use of the owner and occupants of the granted premises, and the grantor, his heirs and assigns."

It was admitted by defendant that the conveyance of the premises was to be made to Cogswell.It appeared also in evidence that the acknowledgment of said deed of Baker to Cogswell was acknowledged before the seals had been affixed thereto, and that the deed has never been reacknowledged.It was also shown that on April 16th defendant and Mrs. Cogswell met Robert F. Herrick, who was authorized to represent plaintiff by appointment, to pass the papers; that she had with her the balance of the purchase money, and she was ready and willing to take the deed of the land, and pay the money, and so informed Mr. Herrick.He produced the deed from plaintiff to Cogswell, having no seals thereon, and also an assignment to himself of the second mortgage, given to one Andrews, dated February 17, 1891.He also produced a partial release, duly executed by himself, from said second mortgage, of premises described as follows, viz.: "A parcel of land situated in Brookline, in the county of Norfolk and said commonwealth, being lot A in a plan made by A.H. French, dated April 3, 1891, to be herewith recorded, bounded southerly on Beacon street, 29 25-100 feet, westerly on land now or late of Freeman, 100 12-100 feet; northerly on land now or late of Bates, 29 25-100 feet; easterly on lot B in said plan, by a line through the middle of a passageway, 100 23-100 feet.Also the fee and soil in the whole of said passageway, subject to its use as a passageway for all the lots in said plan."Mr. Herrick further stated at this interview that he was unable to procure a release of the first mortgage on the premises referred to in the agreement, as it had not been returned to him from the savings bank, or to produce a deed properly sealed, on said 16th...