Hazen v. Mathews
| Citation | 184 Mass. 388,68 N.E. 838 |
| Parties | HAZEN v. MATHEWS. |
| Decision Date | 25 November 1903 |
| Court | United States State Supreme Judicial Court of Massachusetts |
Brooks & Hamilton, for plaintiff.
T. W Kenefick, J. B. Carroll, and W. H. McClintock, for defendant.
In 1866 one Crary bought of Gilbert and Peter Shute a farm containing some 51 acres; and at some time not stated in the bill of exceptions he purchased another tract, lying north of the Shute farm, 'known as the Straub purchase.' On November 5, 1868, he filed in the office of the register of Westchester county the accompanying plan, in which both parcels are laid out in building lots fronting on streets shown on the plan. On July 27, 1868, he sold to one McDougall lots 96 and 104, and to one Komp lot 97, referring to a map to be recorded, and they are shown on the plan recorded in the succeeding November, mentioned above. On March 1, 1869, he conveyed to one Darling an undivided half interest in all the tract shown on the plan; that is to say, an undivided half of the Shute purchase and the Straub purchase, escepting lots 96, 97, and 104, which had been previously conveyed away by him, and also lots 81, 87, 91, 102, 103, 114, and 115, which had not been conveyed. All of these lots were originally part of the Shute purchase. Crary also excepted a part of the Straub purchase, being the land included in lot 49 and a portion of lot 67 on said plan. On March 20, 1869, he sold to one Wooster lot 91, which had been excepted from the conveyance to Darling. That lot was conveyed by Wooster to the defendant, and by the defendant to the plaintiff; and in the conveyance to the plaintiff the defendant covenanted that he owned the lot free from incumbrances.
The plaintiff's claim is that by the deed from Crary to Wooster lot 91 became subject to an incumbrance by way of equitable restriction, and this action was brought to recover from the defendant the difference between the market value of lot 91 free from incumbrances, and its value subject to the equitable restriction in question.
No evidence was introduced at the trial of the fact that by the law of New York the deed from Crary to Wooster created an equitable restriction, nor of what the law of New York on that subject is. In the absence of such evidence, the case must be disposed of on the presumption that the law of New York in this respect is the same as the common law of this commonwealth.
On April 30, 1869, two months after the conveyance of the undivided half of substantially the whole tract to Daring and one month after the conveyance to Wooster, a plan was filed in the register's office for Westchester county, covering the tract of land covered by the former plan, and another tract of land equally large. On this second plan Summit avenue was cut through from Sidney avenue to Prospect avenue. Otherwise the lay-out of the land is substantially the same. There were changes in the division of the land into lots within the side lines of the streets, which do not seem to be material in this case. It was provided in the deed from Crary to Wooster, among other things, that neither the grantee, nor his heirs or assigns, should at any time thereafter erect a dwelling or other building within 50 feet of the front line of said lot. The plan referred to in the deed is the first plan, on which Summit avenue stops at Sidney Place, and is not represented as going through to Prospect avenue, as it did on the second plan. The front line of the lot is the line of Prospect avenue. In June, 1874, Crary and Darling conveyed to Wooster a small triangular piece of land, formerly part of lot 90, left on the east side of Summit avenue, and butting on the upper side of lot 91; and Wooster conveyed to Crary and Darling a small triangular lot taken from the lower end of...
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