Leonard v. Wheeler

• Citation: 261 Mass. 130,158 N.E. 502
• Parties: LEONARD v. WHEELER et al.
• Decision Date: 18 October 1927
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

261 Mass. 130

158 N.E. 502

LEONARD

v.WHEELER et al.

Supreme Judicial Court of Massachusetts, Franklin.

Oct. 18, 1927.

Exceptions from Superior Court, Franklin County; R. W. Irwin, Judge.

Action of contract by John F. Leonard against Perley J. Wheeler and another to recover a deposit under a land sale contract. Verdict was ordered for plaintiff, and defendants except. Exceptions overruled.W. A. Davenport and W. L. Davenport, both of Greenfield, for plaintiffs.

J. T. Bartlett and P. H. Ball, both of Greenfield, for defendant.

CARROLL, J.

This is an action of contract to recover $1,000, deposited with the defendants under a written contract of sale of certain real estate. The contract provided that the defendants were to sell and the plaintiff to purchase the real estate, to be conveyed ‘by a good and sufficient warranty deed’ of the defendants ‘conveying a good and clear title to the same, free from all incumbrances'; that the premises were to be conveyed on or before May 1, 1922; and that the purchase price was to be $12,040. It was agreed that the defendants received under the contract a deposit of $1,000.

Prior to December 3, 1915, the real estate in question was owned by Almira E. Thompson, who died in December, 1920. The defendants are her residuary devisees, and the real estate owned by her passed to them by her will, which was duly admitted to probate. Marion L. Swan, who died October 23, 1920, was the daughter of Almira E. Thompson. On December 3, 1915, Mrs. Thompson conveyed the premises to Marion L. Swan, to ‘have and enjoy * * * so long as she may live with privilege of sale, if need be, and appropriation of the proceeds of said sale to herself absolutely. * * * In the event said above described premises are not disposed of during the lifetime of said grantee, as above provided, the remainder is to vest absolutely in the Town of Orange, * * * in trust, however, to provide and maintain a home * * * for the needy and worthy aged and infirm.’ This deed was recorded January 22, 1916. On February 17, 1916, Mrs. Thompson again conveyed the real estate to Marion L. Swan, by deed recorded April 6, 1916, giving to her a life estate: ‘To have and to hold the granted premises, with and the privileges and appurtenances thereto belonging to the said Marion L. Swan for and during the term of her natural life.’ On February 28, 1916, by deed recorded March 2, 1916, Marion L. Swan conveyed the premises to Mrs. Thompson,the deed stating: ‘This conveyance is made as a gift and is without consideration.’

The plaintiff called the defendant Percey G. Wheeler who testified he made no deed of the real estate on or before May 1, 1922, to the plaintiff. In the Superior Court a verdict was directed for the plaintiff. The case is before us on the defendants' exceptions.

[1][2] Under the deed of December 3, 1915, from Mrs. Thompson to her daughter, the grantee took a life estate with the power of sale ‘if need be.’ On her death the premises were to belong to the town of Orange. Marion L. Swan could convey the premises only in case of need. She had no power under the deed to make a gift of the premises, and as her deed to her mother was a gift, it was not according to the terms of the power and the town of Orange on the death of Marion L. Swan became the owner. Chase v. Ladd, 153 Mass. 126 , 26 N. E. 429,25 Am. St. Rep. 614. See Ladd v. Chase, 155 Mass. 417, 422, 29 N. E. 637;Merchants' Trust Co. v. Russell (Mass.) 157 N. E. 338. The grantor reserved to...