Fletcher v. Livingston

• Decision Date: 27 February 1891
• Citation: 26 N.E. 1001,153 Mass. 388
• Parties: FLETCHER v. LIVINGSTON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

153 Mass. 388

26 N.E. 1001

FLETCHER

v.LIVINGSTON et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 27, 1891.

Exceptions from superior court, Suffolk county; JOHN W. HAMMOND, Judge.

This was a action of tort, tried by HAMMOND, J., without a jury. The facts found by the court were as follows: On March 1, 1886, Louisa Fletcher, being then seised in fee of the Critchet lot, a lot of woodland of about six acres, executed and delivered for a valuable consideration to the plaintiff, her daughter, a paper, of which the following is a copy: “Billerica, Mass., Mar. 1, 1886. Mary Etta Fletcher bought of Louisa Fletcher all the wood and timber standing on that piece of land called the ‘Critchet Lot,’ as per deed recorded in Cambridge, Nov. 7, 1854, with Middlesex Deeds Book 695, page 33, Caleb Hayden, Reg., with one year's time to get it off, for two hundred and seventy-five dollars. $275. Received payment. LOUISA FLETCHER.” Afterwards the said Louisa Fletcher verbally agreed with the plaintiff that the plaintiff should have a reasonable time longer within which to remove the wood. The said Louisa died intestate on December 21, 1886, and on January 11, 1887, the defendant Crawford was duly appointed administrator of her estate by the judge of probate of Middlesex county, and he, by the consent of the heirs of said Louisa, executed and delivered to the plaintiff, on or about the date thereof, a paper, of which the following is a copy: “Boston, Feb. 18, 1887. Miss M.E. Fletcher, 20 Joy Street, Boston—Dear Madam: Since the receipt of your letter of the 16th inst., inclosing a copy of the sale to you of the wood and timber on what is known as the ‘Critchet Lot,’ I have had a consultation with the other heirs, and I have their consent to extend the time mentioned in your agreement of sale in which to remove said wood for the term of six months, and so I do hereby extend the time in which you are to remove said wood six months from March 1, 1887, or until Sept. 1, 1887; it being distinctly understood that this agreement to extend said time is not to be taken as confirming said sale, but leaves all such questions precisely as heretofore. Yours, truly, J.B. CRAWFORD, Administrator of the Estate of Louisa Fletcher.” Prior to September 1, 1887, Crawford filed a petition for leave to sell real estate, and license was issued to him September 13, 1887, pursuant to which he, after advertising according to law, did by public auction, upon the premises, sell the Critchet lot, without reservations, to the defendant Livingston, and on November 12, 1887, executed and delivered to Livingston an administrator's deed, in the usual form, of the lot without reservation. The auction was upon the premises, and Crawford, for the purposes of selling, and Livingston, for the purpose of bidding, were then upon the premises, but neither of them were shown to have been on the premises at any other time. None of the wood has ever been taken off by the plaintiff or the defendant. The woodland was in the possession of the husband of said Louisa Fletcher as tenant by curtesy until the delivery of the administrator's deed of November 12, 1887, to the defendant Livingston. The court ruled—First, that the contract of March 1, 1886, was a sale to the plaintiff of only so much of the timber as the vendee might take...