Bennett v. Sheinwald
| Decision Date | 19 March 1925 |
| Citation | 147 N.E. 28,252 Mass. 23 |
| Parties | BENNETT et al. v. SHEINWALD. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Report from Superior Court, Suffolk County; Robert F. Raymond, Judge.
Action of contract by Stephen H. Bennett and others against William Sheinwald to recover for alleged breach of land sale contract. Verdict was directed for defendant, and case reported. Judgment for defendant.
J. Codman and J. T. Wheelwright, both of Boston, for plaintiffs.
M. M. Horblit and J. Wasserman, both of Boston, for defendant.
This is an action of contract for the recovery of damages for an alleged breach of a written agreement, under which the plaintiffs were to sell and the defendant to buy a certain lot of land with buildings thereon situated on Commonwealth avenue, in Boston. The pertinent provision of the contract is as follows:
‘The premises are to be conveyed by a sufficient quitclaim deed conveying a clear title thereto free from incumbrances except Commonwealth avenue restrictions of record and city of Boston taxes assessed as of April 1, 1922. * * *’
At the conclusion of the evidence the court, on motion of the defendant, directed a verdict in his favor, and by agreement of the parties submitted to the jury the question of damages only, which were assessed in the sum of $4,000. The case was then reported to this court for determination of the correctness of the ruling directing a verdict for the defendant. If the ruling was right, the exceptions taken by the defendant become immaterial.
The contract on behalf of the plaintiffs was signed by Stephen H. Bennett, individually, and also as ‘agent for the heirs.’ Margaret D. Bennett, wife of Stephen, and mother of the other plaintiffs, at her decease in 1915 was the owner of the real estate in question. She left a will which was duly probated and allowed; her husband waived its provisions and received his statutory share in his wife's estate. It is contended by the defendant at the outset that the contract is invalid, for the reason that it purports to have been made between the surviving husband and ‘heirs and devisees of Margaret D. Bennett’ and the defendant; also, that the agreement is invalid for the reason that the plaintiffs, with the exception of Stephen H. Bennett, are not individually named as contracting parties, and that it does not set forth who the ‘heirs and devisees' are; and, finally, that the agreement does not comply with the statute of frauds. It is apparent from the record that, although the motion for a directed verdict filed by the defendant was allowed, the only real issue between the parties was, whether the premises to be conveyed were free from incumbrances except the restriction specifically named. The report recites that:
The ‘defendant refused to accept the deed on the ground then stated that it would not convey to his wife a title ‘free from incumbrances except Commonwealth avenue restrictions of record and city of Boston taxes assessed as of April 1, 1922.’ * * *'
It is sufficient to say that no other issue than that stated is before this court.
[1] It appears that at the trial, by agreement of the parties, certain deeds and a party-wall agreement were admitted in evidence which showed a complete chain of title to the premises in question from February 20, 1879, to April 16, 1904. It was admitted by the plaintiffs that Commonwealth avenue is and since 1896 has been a public parkway; that in pursuance of the statutes the park commissioners duly restricted the height of buildings bordering on the avenue to 70 feet, and established a ‘set-back restriction’ of 25 feet some years before 1922; and that these restrictions were a matter of public record in 1922 and are still in force. These two restrictions are the only ones which are shown by the record to affect property bordering on this avenue. The earliest deed above referred to is that of Braman and others, trustees, to Morse, dated February 20, 1879, and duly recorded and includes the land in question. It contains the following provision:
‘All pile foundations, stonework, walls, and fences on the boundary between this lot and either of the adjoining lots shall be placed one-half part on each of said lots, and whenever the owner of either of said lots shall use and enjoy any part of such foundation, stonework, walls and fences as built by another, such owner shall pay for such part of such foundation, stonework, walls and fences the actual value of one-half part thereof to the owners thereof.’
The foregoing provisions relating to party walls is referred to in subsequent deeds and is still in full force and effect. This provision is incorporated in the various deeds in the chain of title of the plaintiff; it cannot be held to be included in the term ‘Commonwealth avenue restrictions' as used in the agreement between the parties in the present case, but is to be considered as a covenant wholly independent thereof. It is the contention of the plaintiffs that said party-wall agreement does not constitute an incumbrance on the lot agreed to be sold, as there was no evidence to show that it diminished the value of the lot, and has been fully executed and completed. The plaintiffs also contend that there is no covenant to rebuild if the walls are destroyed and that such provision is made for the benefit of lots of adjoining owners. The question, and the only question, we are called upon to decide, is whether the provision relating to party walls is an incumbrance on the lot agreed to be conveyed.
[2][3] The plaintiffs, to recover, must show affirmatively that they tendered a deed of the premises to the defendant which conveyed a ‘clear title thereto free from incumbrances,’ subject only to the restrictions specifically referred to in the agreement. The lot which they agreed to convey had a frontage of 25 feet on the northerly side of Commonwealth avenue and is one-half of the land originally conveyed in 1879 by the plaintiffs' predecessors in title, Braman and others, to Morse. The easterly and westerly boundary walls of the lot in question are subject to the party-wall provision in the Braman deed. The record does not expressly disclose whether either of these walls has been built, or, if so, to what extent; and there is no time limit on the duration of this provision in the Braman deed. It applies to all pile foundations, stonework, walls and fences, and provides that ‘whenever’ the owner of either adjoining lot shall use and enjoy any part of such wall as built by another, he shall pay for such part one-half its actual value to the owner thereof. Under this provision as owner not only has the...
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