Look v. Kenney

• Decision Date: 25 February 1880
• Citation: 128 Mass. 284
• Parties: Dwight B. Look v. Clarence Kenney
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

128 Mass. 284

Dwight B. Look v. Clarence Kenney

Supreme Court of Massachusetts

February 25, 1880

Argued October 3, 1879

Worcester. Contract upon a written agreement entered into on June 2 1879, by the terms of which the plaintiff agreed to sell, and the defendant agreed to buy, a parcel of land in Leominster for $ 100, and an undivided half of another parcel of land in the same town for $ 40, the plaintiff to convey the same to the defendant within thirty days, "by a sufficient deed to give him a clear title thereto, free of all incumbrances." The case was submitted to the Superior Court, and, after judgment for the defendant, to this court on appeal, on an agreed statement of facts in substance as follows:

The plaintiff within the thirty days tendered to the defendant a deed of sad land, properly executed and sufficient in form to give the defendant a clear title thereto, free of all incumbrances, and demanded of him the sums agreed to be paid therefor, but the defendant refused to receive the conveyance or pay the consideration therefor, on the ground that the plaintiff had no title to the land, or, if he had any title thereto, that the land was not free of all incumbrances, and the plaintiff could not give him such a title as the agreement required.

The plaintiff's title to both tracts of land was derived through a mortgage deed given by Joseph Collins, dated January 1, 1876, and duly recorded, in which, in consideration of a certain sum to him paid "by Dwight B Look and the estate of William Tilton," the premises were conveyed "unto the said Dwight B. Look and Tilton estate, their heirs and assigns," habendum "to the said Look and Tilton estate, and their heirs and assigns;" and it was provided that upon breach of condition "the said grantees, or their executors administrators or assigns, may sell." The plaintiff, claiming to be sole mortgagee of the whole land covered by the mortgage which had not been released, including that in question, sold the land under the power to himself.

The plaintiff was the only surviving partner of the late firm of Tilton & Look, composed of himself and William Tilton referred to in said mortgage, who died on December 7, 1873, leaving a large amount of personal property after paying his debts, besides his interest in the firm. At the time of Tilton's death, the firm held a note for $ 2700, given to it by Collins, and secured by a pledge of railroad stock. At the date of the mortgage, Collins desired to use the stock so pledged and still held by the plaintiff, and proposed to give the latter in place of the note and stock a new note for $ 2700, secured by a mortgage on real estate, which the plaintiff consented to take, and the above mortgage and a note, payable to Dwight B. Look and William Tilton estate, were duly executed and delivered by Collins to the plaintiff,...