Hano v. Bigelow

• Decision Date: 08 January 1892
• Citation: 155 Mass. 341,29 N.E. 628
• Parties: HANO v. BIGELOW et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

155 Mass. 341

29 N.E. 628

HANO v. BIGELOW et al.

Supreme Judicial Court of Massachusetts, Suffolk.

January 8, 1892

In 1866 one John H. Lockey was the owner of a certain tract of land on North avenue, in Cambridge. On October 15, 1866, he conveyed to the North-Avenue Orthodox Congregational Church a portion of said premises lying on the southeast corner of North avenue and Roseland street. The deed of conveyance contained no restrictions of any kind whatever, and referred to a plan of land of Morse et al dated 1851. On April 30, 1868, said Lockey conveyed to one Holman another portion of said premises, lying on the north-east corner of North avenue and Roseland street. The deed of conveyance contained no restrictions of any kind whatever, and referred to no plan, but is shown as lot 4 on the plan of Mason, by which plan Lockey platted his entire tract into lots. On May 19, 1868, Lockey conveyed in different lots, to various grantees, all the remainder of said premises, save one lot lying on Beacon street and the Fitchburg Railroad, being lot 10 on the Mason plan. The several conveyances of the said lots each contained the following restriction: "The above lot is conveyed with the restriction that first-class dwelling-houses only, with their appurtenances, are to be erected upon the said premises." (In the deed conveying lots 1 and 2, however this restriction was modified by the following language "Except that on lot numbered 1 a store may be erected thereon.") All of said lots then conveyed fronting on said Roseland street contained, in addition, the further restriction, "that all buildings erected upon said premises shall be set back at least ten feet from the line of said Roseland street." Lots 1 and 2 were conveyed to one Miles, and the greater portion thereof was subsequently conveyed by him to the defendants in this case, being the premises referred to in the bond hereinafter mentioned. Lot 3 was conveyed to said Holman, and lot 14 was conveyed to said North-Avenue Orthodox Congregational Society. More than a year later, on May 28, 1869, said Lockey conveyed to one Frost the sole remaining lot (shown on said plan of Mason as lot 10) and a portion of said Roseland street as then laid out. This conveyance was made subject to no restrictions, but to the following condition: "Provided, however, and this conveyance is made upon the express condition, that the grantee, his heirs and assigns, shall never close up said Roseland street where it crosses said land, but shall always keep the same open to connect with said Beacon street, but they may alter the course of the same so as to straighten it." On May 6, 1874, said Lockey, who then owned no land shown on said plan of Mason, executed and delivered to said Holman, Bigelow, and Brackett an instrument purporting to be a release of the restrictions on lots 1, 2, and 3, of which they continued, respectively, the owners. Said restrictions are frequently referred to in later deeds of the respective estates conveyed by said Lockey on May 19, 1868. The deed from said Miles to said defendants, however, makes no mention of the same. They are almost uniformly mentioned in conveyances of lot 3, the title of which, together with that of lot 4, has now passed by mesne conveyances to one Mary C Benson. Lockey owned no other land in the neighborhood from 1866 to the date of suit, and none of the various lots conveyed by Lockey on or subsequent to May 19, 1868, were owned by the original grantees from him at the date of this controversy. On April 7, 1890, the defendants executed and delivered to the plaintiff a bond for $1,000, the condition of which was that the defendants should convey to the plaintiff a tract of land, being the greater part of lot 2 and part of lot 1 on said plan, by a good and sufficient warranty deed conveying a good and clear title, free from all incumbrances, or, in case the title proved defective, should refund to the plaintiff the sum of $100, which was paid by him to the defendants at the time of the delivery of said bond. The plaintiff duly tendered performance of all the conditions which were on his part to be performed, and the defendants tendered to the plaintiff their warranty deed of the premises, and obtained releases of said restriction from all parties, if any, entitled to enforce the same, with the following exceptions, viz.: Mary C. Benson, owning lots 3 and 4 on said plan; Benjamin F. Hunt, Jr., owning a portion of lot 13 on said plan; the trustees under the will of John Appleton, owning that portion of lot 10 on said plan which lies north of the line of Roseland street; and the Arlington Five-Cents Savings Bank, holding a...