Lovell v. Columbian Nat. Life Ins. Co.

• Decision Date: 27 May 1936
• Parties: LOVELL et al. v. COLUMBIAN NAT. LIFE INS. CO. et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

294 Mass. 473

2 N.E.2d 545

LOVELL et al. v. COLUMBIAN NAT. LIFE INS. CO. et al.

Supreme Judicial Court of Massachusetts, Suffolk.

May 27, 1936

Suit in equity by Martha E. Lovell and another against the Columbian National Life Insurance Company and others. From a final decree dismissing the bill, the plaintiffs appeal.

Decree affirmed.

Appeal from Superior Court, Suffolk County; Donahue, Judge.

A. L Brown and D. E. Mayberry, both of Boston, for appellants.

F Adams and M. De W. Howe, both of Boston, for Columbian Nat Life Ins. Co.

S. A Goodman, of Boston, for Economy Grocery Stores Corporation.

PIERCE, Justice.

This is a suit in equity against the Columbian National Life Insurance Company and the Economy Grocery Stores Corporation-the former being the owner, and that latter the lessee of a part, of premises situated at 297 Newbury street, in Boston-to enjoin the defendants from permitting or carrying on a chain grocery store on the premises. The plaintiffs are the owners of premises situated at 293 and 301 Newbury street, on either side of the defendants' premises, each being one lot removed therefrom.

The trial judge found the following material facts, the most part being admitted by the defendants. In 1879, Caleb H. Warner and Charles F. Smith, trustees, owned a tract of land on Commonwealth avenue between Gloucester and Hereford streets, and a tract in the rear of the same fronting on Newbury street and separated from the Commonwealth avenue land by a passageway in which Warner and Smith owned the fee. Between August 1, 1879, and June 18, 1880, the trustees made three separate conveyances of the Commonwealth avenue tract, conveying to William D. Pickman three undivided sixth parts, and to Jacob C. Rogers one undivided sixth part and later two undivided sixth parts. In each of these deeds the fee in the northerly half of the passageway between the two tracts was conveyed with a reservation of the use to the grantors, their successors and assigns. These conveyances were subject to the restriction that no part of any building erected on the granted premises should project over the passageway. Each deed contained the following covenant: ‘ And we, the said grantors for ourselves and our heirs, successors and assigns do further covenant with the said grantee, his heirs and assigns that no building other than dwelling houses and the usual buildings appurtenant thereto, including stables for private use only, shall be erected upon land now owned by use in the rear of the above granted premises and bounded on the east by the easterly line of the above granted premises extended, southerly by Newbury street, westerly by the westerly line of the above granted premises extended, and northerly by the passageway aforesaid and that no buildings erected upon said rear land shall project over the passageway aforesaid. It being, however, expressly provided, that this covenant shall run with the land affected thereby but the said grantors, their heirs, successors, representatives or assigns shall be under no liability by reason of this covenant save as they may be owners of said land or part thereof, and when any portion thereof shall be conveyed by them their liability shall cease as to the part so conveyed.’

Between October 2, 1884, and November 11, 1887, by six separate quitclaim deeds, Warner and Smith conveyed the lots in the Newbury street tract respectively to Uriah H. Coffin, Louisa D. Edwards, Elizabeth Post, Edwin B. Horn, George H. Edwards and Alden Avery. Each of those deeds contained a clause substantially in the following form: ‘ Subject to the restrictions, stipulations and agreements mentioned in the deed from these grantors to Jacob C. Rogers, recorded with Suffolk Deeds, libro 1495, folio 553 (the deed of the undivided two sixths), and in the deed from these grantors to William D. Pickman recorded as aforesaid, libro 1464, folio 250 (the deed of the three undivided sixth parts) and in the deed from these grantors to Jacob C. Rogers recorded as aforesaid, libro 1464, folio 251 (the first deed to Rogers of the one undivided sixth part) so far as any of said restrictions, stipulations and agreements concern the premises hereby conveyed.’

The land of the plaintiff Lovell is part of the lot originally conveyed by Warner and Smith to Avery, and the deed to the plaintiff Lovell from her grantor, one Shirley C. Speed, ‘ conveyed the land and building and the fee of the southerly half of the passageway in the rear; ‘ together with the benefit of an subject to all rights, easements, reservations, restrictions and agreements set forth or referred to in a deed to Alden Avery from Caleb H. Warner et al. Trustees, dated November 11, 1887, * * * recorded with Suffolk Deeds * * * so far as now in force and applicable.’ ' The land of the plaintiffs Magaw is next west to the lot originally conveyed to Coffin by Warner and Smith and is the lot originally conveyed to Louisa D. Edwards. The deed to the Magaws was made by one Mary F. Kett and contains the provisions that: ‘ The premises are conveyed subject to and with the benefit of the easements and restrictions and agreements mentioned or referred to in a deed to one Gladys M. Crocker, recorded with Suffolk Deeds * * * in so far as now in force and applicable.’ The conveyance to the Magaws was made June 24, 1926.

The Newbury street property which the defendant insurance company now owns, was mortgaged to it on November 7, 1927, by Daniel A. McLaughlin. The mortgage deed recited that the premises were conveyed to the mortgagee ‘ with the benefit of and subject to the restrictions, rights and party wall agreements imposed by deeds recorded with Suffolk Deeds, * * * so far as now in force and applicable.’ On November 19, 1930, the mortgagee ‘ sold the property * * * pursuant to a power of sale * * * became the purchaser at the foreclosure sale, and on November 25, 1930, deeded the premises to itself.’ In July, 1927, the basement of the building mortgaged to the insurance company on November 7, 1927, was altered into a store, and since September, 1927, has been occupied by the defendant Economy Grocery Stores Corporation under a written lease from year to year.

On December 28, 1927, Daniel A. McLaughlin, the owner of the Newbury street property originally conveyed to Edwin B. Horn, brought a bill in equity to have the restriction on his property declared to be no longer in force. The bill was taken for confessed against Mary K. Magaw among others of thirty-three defendants. Although no service was made on the plaintiff Lovell, she testified that she ‘ followed’ the case. As late as the spring of 1932, the present plaintiffs were informed by their attorneys that there were no restrictions against business on their properties. Early in 1932, when the plaintiff Lovell was contemplating changes in her premises so as to make them available for business purposes, she was informed by another Newbury street property owner that there were restrictions against such use of her property, and that the restrictions applied also to the premises at 297 Newbury street.

On November 28, 1932, the present bill of complaint was brought. Findings were made of the amount of damages caused by the carrying on of the store and of the character of the neighborhood. The trial judge ruled (1) that the plaintiffs could not recover since the restrictive covenant was a restriction not on use but on building; (2) that the plaintiffs could not recover for the reason that the restrictions were not for the...