Clapp v. Wilder

• Decision Date: 20 June 1900
• Parties: CLAPP v. WILDER et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

176 Mass. 332

57 N.E. 692

CLAPP v. WILDER et al.

Supreme Judicial Court of Massachusetts, Worcester.

June 20, 1900

COUNSEL

Chas A. Babbitt, for appellant.

Hamilton Mayo, for appellees.

OPINION

HAMMOND J.

This case turns upon the legal force and effect of this clause in the deed from Eaton to the defendants, namely, 'And this conveyance is made upon the express condition that said Wilder and Hills, their heirs and assigns, shall never erect any building nearer the street than the store building thereon.' The first question is whether this is a common-law condition. The deed is in the ordinary form of a warranty deed in general use in this commonwealth, is carefully drawn, and bears upon its face evidence that the draftsman understood the meaning of the legal terms used. It conveys in apt language the land now owned by the defendants and creates also in express terms two easements, one of which is a right of way over a strip of land 8 feet wide on the grantor's land next southerly of and adjoining the land conveyed, and the other is the right to maintain a drain from the store building as conveyed to the grantor by a prior deed; and it reserves a right of way over a strip of land upon the southerly side of the land conveyed, making, in connection with the right of way above conveyed to the defendants, a passageway 16 feet wide, to be used in common and also the right to maintain a certain drain from the cellar of the house where the grantor resides to the cellar under said store building. Up to this point the grantor has used language apt to create easements and reservations. He desires to do one thing more, and that is to prevent the erection of any building within a certain distance of the street. Everything else has been provided for. Here the language changes, and as to this one thing the deed is upon the express condition that this provision be complied with. The language is, 'upon the express condition,' an emphatic form of the expression 'on condition.' Whatever may be the force of this language in a will (see Attorney General v. Master, etc., L. R. 6 H. L. 1; Bradstreet v. Clark, 21 Pick. 389), there can be no doubt of its usual meaning in a deed. The phrase 'Sub conditione,' or 'on condition,' is one of the three phrases by which, without more, a conditional estate may be created. It is the first one named by Littleton, and Coke says of it, 'This is the most expresse and proper condition in deed, and therefore our author beginneth with it.' Co. Litt. 203(a); Rawson v. School Dist., 7 Allen, 125, and authorities cited. In the deed before us it applies to one single thing perfectly plain and simple. The common law as to the creation of conditional estates has always been considered a part of our common law. If we are to have such estates, it is important that there should be the least possible uncertainty as to the form of the language to be used in creating them; and when we find in a deed an intensified form of the phrase, which from the earliest times has been regarded as 'the most expresse and proper' phrase by which to create such an estate, it is to be assumed, in the absence of anything appearing in the deed to the contrary, that the phrase is used for its proper legal purpose, namely, to create such an estate, and that such an estate is thereby created. No doubt there is a disposition among courts to look for something in the deed which shall modify the severity of the language; and sometimes considerable astuteness has been exercised in this direction (Post v. Weil, 115 N.Y. 361, 22 N.E. 145, 5 L. R. A. 422); and no doubt the language is sometimes used when from the whole deed it sufficiently appears that it could not have been intended in its full technical sense, and in such cases a restriction, and not a technical condition, is the result. Thus, in Sohier v. Trinity Church, 109 Mass. 1, 19, the expression 'in trust nevertheless, and upon condition always,' was held not to create a condition, because 'the grantors were merely a committee who had taken their title in trust for the society, and, if it were to come back to their heirs by forfeiture, it must be held by them in trust for the society, and thus would be turned into a trust estate.' In City Mission v. Appleton, 117 Mass. 326, the words 'upon and subject to the condition' preceded one paragraph, and the words 'and also upon the further condition' preceded the next paragraph, and they were held not to create conditions. As stated by the court, there was no reason for giving to the first phrase any different meaning than that given to the other; and both clauses could not be construed as conditions, because 'upon that construction a breach of the first would, upon entry by the grantor or his heirs, forfeit the whole estate, and leave nothing in the grantee to which the last part of the second clause could apply.' The second clause could 'therefore have effect only by way of restriction, and the first clause must have a like interpretation and effect.' So, also, where a conveyance is subject to several conditions of varying importance regulating the mode in which the grantee may use and enjoy the land, and it appears that they are imposed as a part of a general scheme of improvement, and therefore enforceable in equity by the owners of the estates for whose benefit they were imposed, they may be considered restrictions, especially if one of them be of such a nature as to be regarded as a personal stipulation. Skinner v. Shepard, 130 Mass. 180; Ayling v. Kramer, 133 Mass. 12. So, also, a deed reciting that the premises are conveyed subject to a condition contained in a prior deed, and reciting the condition, may be construed, not as reimposing the condition by the grantor, but as conveying the title the grantor had received from his predecessor. Nor is the case of Cassidy v. Mason, 171 Mass. 507, 50 N.E. 1027, to be understood as extending this doctrine further than as stated in these two paragraphs. Ayling v. Kramer, ubi supra. See Locke v. Hale, 165 Mass. 20, 42 N.E. 331. The case at bar does not come within any exception to the general rule as to the legal meaning of the phrase 'upon the express condition.' As stated by Parkes, C.J., in Gray v. Blanchard, 8 Pick. 284, 288: 'The words 'this conveyance is upon the condition' can mean nothing more or less than their natural import. * * * It would be quite as well to say that the words mean nothing, and so ought to be rejected altogether.' It must be held, therefore, that the deed from Eaton to the defendants conveyed a conditional fee, and that the right of reverter, remaining in the grantor up to the time of his death, went to his heirs or devisees. Gray v. Blanchard, ubi supra; Allen v. Howe, 105 Mass. 241; Guild v. Richards, 16 Gray, 322; Hayden v. Inhabitants of Stoughton, 5 Pick. 528; Austin v. Cambridgeport Parish, 21 Pick. 215; Pub. St. c. 127, § 1.

The next question is whether this condition was imposed for the benefit of the land now held by the plaintiff. If it was then it is immaterial whether it be in the form of a condition or restriction, so far as respects the right of this plaintiff. Whitney v. Railway Co., 11 Gray, 359; Hopkins v. Smith, 162 Mass. 444, 38 N.E. 1122, and cases therein cited. Upon this question the case comes to us in a singular way, and it is somewhat difficult to understand the terms of the report. Upon the record before us there is an agreed statement of facts, and it would seem that the case was submitted to the superior court upon that. The trial judge ruled that the clause in dispute is a restriction, then 'found from the terms of the deed and surrounding circumstances and situation that it was not intended by the grantor to create a servitude for the benefit of plaintiff's land,' and then, by consent of counsel, reported the case to this court upon the bill, answer, agreed facts, and his 'findings.' If his so-called 'finding' is to be regarded as a finding of fact, and that finding is to stand, then there is no case for the plaintiff. The parties, however, have treated the matter as, in substance, a ruling in law, and we therefore assume it was intended as such, and that the case is before us upon the bill, answer, and agreed facts. The burden is upon the plaintiff to show that the condition in the deed to the defendants created a servitude or right in the nature of an easement, which, by implication, is made appurtenant to his land. The rule is stated in Whitney v. Railway Co., 11 Gray, 359, to be that, when 'it appears by a fair interpretation of the words of a grant that it was the intent of the parties to create or reserve a right in the nature of a servitude or easement in the property granted for the benefit of other land owned by the grantor, and originally forming, with the land conveyed, one parcel, such right will be deemed appurtenant to the land of the grantor, and binding on that conveyed to the grantee; and the right and burden thus created will respectively pass to and be binding on all subsequent grantees of the respective lots of land.' But whether the condition was intended to create merely a personal right or an easement appurtenant to some other land is always a question of intent. As stated in Beals v. Case, 138 Mass. 138: 'It is always a question of the intention of the parties; and, in order to make this rule applicable, it must appear from the terms of the grant or from the situation and surrounding circumstances that it was the intention of the grantor in inserting the restriction [condition] to create a servitude or right which should inure to the plaintiff's land, and should be annexed to it as an appurtenance.' There is no language in the deed expressly stating that this condition was inserted for the benefit of the...