Kimball v. Com. Ave. St. Ry. Co.

• Decision Date: 25 March 1899
• Citation: 53 N.E. 274,173 Mass. 152
• Parties: KIMBALL et al. v. COMMONWEALTH AVE. ST. RY. CO. et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

173 Mass. 152

53 N.E. 274

KIMBALL et al. v. COMMONWEALTH AVE. ST. RY. CO. et al.

Supreme Judicial Court of Massachusetts, Middlesex.

March 25, 1899

COUNSEL

Curtis

Abbott, for plaintiffs.

W.H Coolidge, H.W. Mason, and H.N. Rice, for defendants.

OPINION

HOLMES J.

This is a bill to enforce a restriction as to the character of buildings to be erected on the defendant's land for 20 years from the date of the deeds by which the restriction was imposed. The defense is a denial that the defendant is bound by the restriction in question. In 1875 one Anthony Holbrook and one Johnson, his son-in-law, owned a four-acre lot, of which both the plaintiff's and the defendant's land formed part, as tenants in common. Holbrook died, and left one-third of his estate to his widow, and one-sixth each to four children. The sixths of two of the children were left in trust, and in 1889 the widow and mother was the trustee. In that year the widow and the two children who had legal estates made a warranty deed purporting to convey two undivided thirds of the plaintiff Kimball's lot to him by metes and bounds. At the same date, the widow, as trustee for the two other children, conveyed one undivided third, and her cestuis que trustent made their separate deed of release. Thus, Kimball had a conveyance by metes and bounds from all the heirs of Anthony Holbrook, one of the two tenants in common. These deeds were made subject to the restriction that no buildings other than dwellings and their appurtenances should be erected on the land, etc., and that "the same restriction shall be inserted by these grantors in all deeds of adjoining lots hereafter made, unless," etc. The last-quoted words apply to the defendant's lot. At this time it is probable that all parties concerned thought that the Holbrook devisees had the whole interest in the land. At least, for some reason, in 1892, by leave of the probate court, the executrix of Johnson, the other co-tenant, who had died in 1887, released to Kimball, for nominal consideration. This deed said nothing of restrictions. The Holbrook devisees joined in this release. The titles of the other plaintiffs are similar to Kimball's.

The title of the defendant Ahl, who owns the land on which it is proposed to erect the building in question, is derived from the same tenants in common, as follows: On February 13, 1895 the devisees of Holbrook and the trustee under his will conveyed to one Winnebel Bowman, by metes and bounds "subject to the same restrictions as are contained in the deeds of adjoining lots" to the plaintiffs; and, on January 19th of the same year, the executrix of Johnson released to Bowman (seemingly in anticipation of the Holbrook conveyances), in the same form as in the case of the plaintiff. The latter conveyances are not material.

The main objection urged is that the deed by the Holbrook heirs to the plaintiff is void. There have been expressions looking that way, it must be admitted. Marshall v. Trumbull, 28 Conn. 183, 185. But it seems to us hardly to need argument, and it is perfectly settled in this state and many others, that such a deed, accompanied by possession, is only voidable, especially in a case like this, where it is at least possible that the grantors were holding adversely to all the world, and that the Johnson co-tenants had only a technical title. Frost v. Courtis (Mass.) 52 N.E. 515; Varnum v. Abbot, 12 Mass. 474; Brown v. Bailey, 1 Metc. (Mass.) 254, 257; Johnson v. Stevens, 7 Cush. 431; De Witt v. Harvey, 4 Gray, 486, 491; Stark v. Barrett, 15 Cal. 361,...