Jeffries v. Jeffries

• Decision Date: 04 September 1874
• Citation: 117 Mass. 184
• Parties: John Jeffries v. Benjamin Joy Jeffries. Same v. Same
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

117 Mass. 184

John Jeffries v. Benjamin Joy Jeffries.

Same v. Same

Supreme Court of Massachusetts

September 4, 1874

Suffolk. The first case was a bill in equity to enforce specific performance by the defendant of an agreement in writing for the purchase of a house and lot of land in Boston, extending from Chestnut Street to Mount Vernon Street. The answer set up that the title was incumbered by a condition or restriction which prevented the erection of any building of a greater height than thirteen feet, upon that part of the land abutting on Mount Vernon Street.

Hearing before Morton, J., who reserved the case for the consideration of the full court on the bill, answer and an agreed statement of facts. The nature of the case appears in the opinion.

Dismissed without prejudice.

J. C Gray Jr., for the plaintiff.

H Stockton & R. Gray for the defendant.

Wells J. Ames & Devens, JJ., absent.

OPINION

Wells, J.

In 1806, these premises, with two other similar parcels adjoining upon either side, each having a house fronting upon Chestnut Street, and a stable in the rear, were held in trust for the use of Mrs. Hepzibah C. Swan, with power to dispose of the whole or any part in fee by deed of appointment or by will. She exercised the power in favor of her three daughters, conveying one of these three houses and lots to each, in three successive years, inserting in each deed the clause, "provided that the roof of the aforesaid stable shall never be raised more than thirteen feet above Olive Street" -- now Mount Vernon Street. The deed of the parcel which the plaintiff now owns was the second of the three in order of time, being dated in 1807. Mrs Swan had a like interest in a lot of land upon the opposite side of Olive, or Mount Vernon Street; but any rights to enforce this restriction, that may have attached to those premises, have been severed and discharged by the terms under which they were subsequently conveyed by her executors.

Mrs. Swan by her will gave all the estate which she had power to give, or dispose of in any way, to her executors to be divided in three equal shares, one of which they were to convey to each of her daughters. The executors, accordingly, conveyed to each of the daughters, "one third part of all the right, title, interest and estate of said grantors, under the devise in trust of said Hepzibah Swan in and to" certain lands, not mentioning those conveyed by deed to her daughters, "and all other lands which said grantors hold as tenants in common and undivided under the devise of said Hepzibah deceased."

The questions raised are whether the clause, above quoted from the deed, created a condition of the conveyance, or a restriction in favor of the appointees of the other two parcels, for the mutual benefit of the three; and whether, in either case, it has since been discharged by the effect of the will of Mrs. Swan, or by the partition of her estate; and if not discharged, whether it forbids the greater elevation of a stable only, or applies to buildings of any and all descriptions, it being agreed by the parties that the land on Mount Vernon Street has not been...