Markey v. Smith

• Decision Date: 01 July 1938
• Citation: 16 N.E.2d 20,301 Mass. 64
• Parties: MARKEY et al. v. SMITH et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

301 Mass. 64

16 N.E.2d 20

MARKEY et al.

v.SMITH et al.

Supreme Judicial Court of Massachusetts, essex.

July 1, 1938.

Action in equity by Fred L. Markey and others, trustees, and others against James P. Smith and others, trustees, and others to enjoin certain of the defendants from interfering with the occupation of a building or the collection of rents from certain tenants named as defendants. Some of the defendants filed a counterclaim. From the interlocutory and final decrees all parties except the defendant tenants appeal.

Reversed, with directions.Appeal from Superior Court, Essex County; Donnelly, Judge.

J. A. Donovan and J. M. Hargedon, both of Lawrence, for plaintiffs.

E. R. Hale, G. Bolton, and J. J. Sullivan, all of Boston, for defendants.

COX, Justice.

This is a bill in equity filed on May 10, 1935, by the Salisbury Beach Attraction Company, lessee, the trustees under the will of Ralph Pratt and the Dodgem Corporation against the trustees of the Salisbury Beach Associates, lessors, seeking to enjoin the latter from interfering with the occupation, or the collection of rents from certain tenants named as defendants, of the building which is located on a portion of the leased premises. The plaintiffs' bill, by amendment, seeks to have the ownership of this building determined. The answer of the defendant lessors sets up a counterclaim for rent allegedly due by the terms of the lease. The case was referred to a master whose report was confirmed by an interlocutory decree. All parties except the defendant tenants have appealed from the interlocutory and final decrees.

The master finds that in 1914 the Salisbury Beach Associates, hereinafter referred to as the Associates, a voluntary association under a declaration of trust dated April 25, 1911, and recorded with the Essex south district registry of deeds, leased to the plaintiff Salisbury Beach Attraction Company, a corporation, hereinafter referred to as the Attraction Company, a lot of land at Salisbury Beach for ten years from May 1, 1914. This lease was canceled in 1922 by mutual consent, and on May 1, 1922, a new lease was entered into by the same parties, covering the northeastern coner of lot 457 “on which is now located the restaurant building of the lessee, and that portion of the westerly side of said lot 457 on which the 'Old Mill' now stands” and several other lots. 67>>The new lease contained the following provisions: ‘To Hold for the term of fifteen (15) years * * * yielding and paying therefor as rent 12 1/2% of the gross receipts from said ‘Old Mill’, or from any other attractions or concessions that the lessors may permit to be operated thereon during the term of this lease. * * * And said Lessee promises to pay also as additional rent all taxes and assessments whatsoever to which the premises or any part thereof may become liable during said term. * * * It is further understood and agreed that said premises described herein are leased for the sole purpose of operating an ‘Old Mill’ which was built in 1921 on the lots described herein and on a part of Lot 498 owned by Ralph Pratt, and a restaurant or store, and that this lease shall be null and void if said Lessee shall fail for a period of thirty days during the Beach season from May 1st to September 15th to any year to operate said ‘Old Mill’ * * * the Lessors may enter * * * to expel the lessee without any notice or demand if he shall fail to pay the rent and taxes as aforesaid, or fail to keep and perform any conditions or agreements herein written on his part to be kept and performed.' On June 1, 1922, the Attraction Company leased the same premises, at a rental of $1 a year, for a period of fourteen years to Ralph Pratt, who died in 1924. From May 31 to July 3, 1926, the ‘Old Mill’ was closed with the consent of the Associates and for the purpose of installing a water chute or plunge. On June 6, 1927, the front part of it was demolished to make room for a ‘Foot-Ball Ride.’ In May, 1928, the remainder of the ‘Old Mill’ was torn down, the ‘Foot-Ball Ride’ was discontinued, and a ‘Custer Ride’ was installed and operated until September, 1930. These changes and installations were made with the consent and approval of the Associates. Since 1930 the Attraction Company has not operated any attraction on the ‘Old Mill’ site. No rent has been paid by the Attraction Company to the Associates under the lease since 1924. Taxes on the building in question, which is located on the northeast corner of lot 457, were paid to the Associates by Pratt or the trustees under his will, up to and including 1933. This building is described in the lease as ‘the restaurant building of the Lessee.’ No other taxes have been paid since 1922. On April 1, 1935, in accordance with a vote of the Associates, an entry was made on the premises and possession taken. Notice of this entry was given to ‘the Estate of Ralph Pratt’ as hereinafter appears. By agreement between the Associates and the trustees under the Pratt will, the rent of the stores in the building in question has been held jointly. There was collected $980 for the year 1934, and $1,375 for 1935. An additional $100 was paid to the Associates in 1935. The plaintiffs' bill relates only to the northeast corner of lot 457, the building which is located thereon and the rent derived therefrom.

The master evidently instructed himself that the clause in the lease of May 1, 1922, from the Associates to the Attraction Company which reads: ‘and that this lease shall be null and void if said Lessee shall fail for a period of thirty days during the Beach season from May 1st to September 15th of any year to operate said ‘Old Mill,” is a conditional limitation, as contended for by the defendants, rather than a condition subsequent as urged by the plaintiffs. The earlier cases laid considerable emphasis on the words used in an instrument of conveyance in determining whether a condition subsequent or a conditional limitation was created. ‘The usual and proper technical words by which such an estate [conditional;] is granted by deed are, ‘provided,’ ‘so as' or ‘on condition.’ * * * So a condition in a deed may be created by the use of the words ‘si’ [if], or ‘quod si contingat’ [that if it happens], and the like, if a clause of forfeiture or reëntry be added.' Rawson v. School District in Uxbridge, 7 Allen 125, 128,83 Am.Dec. 670;Fifty Associates v. Howland, 11 Metc. 99;Attorney General v. Merrimack Mfg. Co., 14 Gray 586, 612;Chapin v. Harris, 8 Allen 594, 596;Gray v. Blanchard, 8 Pick. 284, 291;Clapp v. Wilder, 176 Mass. 332, 335, 57 N.E. 692,50 L.R.A. 120; Bessey v. Ollman, 242 Mass. 89, 136 N.E. 176;Shannon v. Jacobson, 262 Mass. 463, 467, 160 N.E. 245.

‘Hereby it is evident, that some words of themselves do make a condition, and some other * * * do not of themselves make a condition without a conclusion and clause of re-entire: and manie times (si) makes a condition and sometimes a limitation. * * *’ Co. Lit. 203, b. ‘The provision for reëntry is * * * the distinctive characteristic of an estate upon condition; and when it is found that by any form of expression the grantor has reserved the right, upon the happening of any event, to reënter, and thereby revest in himself his former estate, it may be construed as such. * * * The words ‘provided,’ ‘so that,’ and ‘upon condition that,’ are the usual words to make a condition; but to say, that if a certain event happen the grantor may reenter, is equally effectual. And the reason of this rule of construction is, that the stipulation for a right of reentry would be senseless if the deed were construed to create a limitation; because the estate vesting upon the mere happening of the event, the right to enter would of course follow with all other rights of ownership.' Attorney General v. Merrimack Mfg. Co., 14 Gray 586, 612.

Apt words of limitation have been said to be ‘while,’ ‘as long as,’ ‘until,’ ‘during,’ or ‘if it is declared in the lease, that the same shall expire on the happening of any contingency. In such cases, whenever the contingency happens, the lease is determined by its own limitation, without any entry or other act to be done by the lessor.’ Wheeler v. Dascomb, 3 Cush. 285, 288;Easterbrooks v. Tillinghast, 5 Gray 17;Ashley v. Warner, 11 Gray 43, 45;First Universalist Society v. Boland, 155 Mass. 171, 174, 29 N.E. 524,15 L.R.A. 231, and cases cited. See Co. Lit. 203. Technical words, however, are not essential to a condition. Dyer v. Siano, Mass., 11 N.E.2d 451. Even where there are apt words in an instrument to create a limitation, and sufficient for that purpose if they stood alone, yet an examination of all parts of the instrument may lead to the conclusion that a condition subsequent is its obvious purpose. Attorney General v. Merrimack Mfg. Co., 14 Gray 586, 612. On the other hand, although apt words are used to create a condition subsequent, yet a construction of the instrument may result in the conclusion that a conditional limitation was intended, where, for example, the word ‘if,’ although used in the grant, was held not to be sufficient of itself to render it a grant defeasible on condition subsequent, the substance of the clause in question being held not to be the forfeiture of a right but the termination of an onerous and unprofitable obligation. Owen v. Field, 102 Mass. 90, 105. The use of the words ‘null and void’ in a conditional clause does not, as a rule, require the conclusion that a conditional limitation is intended. 68 Beacon Street, Inc., v. Sohier, 289 Mass. 354, 194 N.E. 303. See Cartwright v. Gardner, 5 Cush. 273, 281. It is fundamental that, in the construction of the language of a lease, it is proper to read together the different provisions therein dealing with the same subject matter, and where possible all the language used should be given a reasonable meaning. Codman v. Hygrade Food Products Corporation, Mass., 3 N.E.2d 759, 106 A.L.R. 1354. ‘Every deed...