Noyes v. Bragg
| Decision Date | 09 January 1915 |
| Citation | 107 N.E. 669,220 Mass. 106 |
| Parties | NOYES v. BRAGG et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Jan. 9 1915.
Wm A. Davenport, of Greenfield, for appellant.
Lyman W. Griswold, of Greenfield, for appellee.
This case comes up on an appeal from a final decree entered on a master's report to which no exceptions were taken. The evidence before the master was not before the superior court and is not before us.
The facts found by the master are in substance as follows: On November 17, 1909, the defendant made a written agreement with the plaintiff and his two sons to sell to them a piece of land in Greenfield 'known as the 'Leonard Farm," which was therein bounded and described. The price was $1,300, $100 of which was paid at the making of the agreement and the balance was to be paid in monthly installments. The plaintiff and his sons entered under that agreement and paid the sum of $675 towards the purchase money. About three years later (in the autumn of 1912) the plaintiff's sons surrendered their rights in the contract to their father, who alone continued to live upon the farm. The plaintiff relinquished his rights under the old agreement on the making of 'an entirely new oral contract' which he made with the defendant. This new contract was afterwards reduced into writing. This writing was in these words:
J. W. Bragg.
'G. P. Noyse.'
The plaintiff continued to occupy the farm under the new contract. He made payments under the new contract amounting to $200. In October, 1913, he offered to make payment of a $25 installment. The defendant refused to accept the money. At that time the plaintiff was not in default in any payment called for by the contract. 'In November, 1913,' the defendant conveyed the farm to Queenie L. Purrington, one of the defendants in this suit. Queenie L. Purrington was the wife of the defendant's son. She was a volunteer under her husband. Her husband (as the master found) took with full knowledge of the fact that there was an outstanding contract between the defendant and the plaintiff. In fact he had tried to buy the farm from the plaintiff and on the plaintiff refusing to sell it to him he undertook to get a conveyance from the defendant in fraud of the plaintiff's rights.
The defendant demurred to the bill and filed a motion to dismiss. A final decree in favor of the plaintiff was entered in the superior court. By the final decree the demurrer was overruled, the motion to dismiss was disallowed and the plaintiff was given the relief he asked for. The decree is set forth in the note. [1]
One only among the many objections made by the defendant is well taken. But there are two matters not objected to by him in which the decree is wrong.
1. The objection that the plaintiff had an action at law to recover damages for breach of agreement does not deprive equity of its jurisdiction to compel specific performance of the contract. Jones v. Newhall, 115 Mass. 244, 15 Am. Rep. 97, relied upon by the defendant was decided before St. 1877, c. 178 (now R. L. c. 159, § 1), was enacted. St. 1877, c. 178 (now R. L. c. 159, § 1) was enacted to avoid the conclusion which the court was forced to adopt in Jones v. Newhall and similar cases. See Dole v. Wooldredge, 135 Mass. 140; Boston & Maine R. R. v. Sullivan, 177 Mass. 230, 58 N.E. 689, 83 Am. St. Rep. 275. But even in Jones v. Newhall the jurisdiction of the court to compel specific performance of a contract for sale of real estate was recognized. See Jones v. Newhall, ubi supra, 115 Mass. at page 248 (15 Am. Rep. 97).
2. The plaintiff had a right to act upon the defendant's refusal to accept the payment which he tendered in October. It was not necessary after that for the plaintiff to go through the nugatory act of making a further tender.
3. The allegations of the bill are not uncertain, vague and indefinite.
4. It is not necessary in a bill to compel specific performance of a contract to convey real estate to set forth any special reason why the plaintiff is entitled to relief in equity.
5. The issue of the statute of frauds does not seem to have been in the mind of the master when he made his findings. If there had been direct evidence that the defendant did not own two parcels of land in Greenfield one known as the 'Leonard Farm' and the other known as the 'Leonard Place,' there would have been no question as to the identification of the land covered by the agreement of April 1, 1913. Harrigan v. Dodge, 200 Mass. 357, 359, 86 N.E. 780. See cases collected in Desmarais v. Taft, 210 Mass. 560, 97 N.E. 96. The 'Leonard Farm' was fully described in the agreement of November 17, 1909. Taking the agreement of April 1, 1913, in connection with the agreement of November 17, 1909, and the transactions between the defendant and the plaintiff found by the master, we are of opinion that the only fair inference from the facts stated in the report is that the 'Leonard Place' referred to in the agreement of April 1, 1913, is the 'Leonard Farm' referred to in the agreement of November 17, 1909. It follows that the statute of frauds was complied with.
6. There were no laches on the part of the plaintiff. The master in his findings did not state the day in October when the tender refused by the defendant was made by the plaintiff. In his brief the defendant assumed that it was made on the 31st day of that month. The fraudulent conveyance to the defendant Purrington was made some time 'in November.' It is stated that the deed to her was dated November 1st. The defendant Purrington undertook to enforce her rights under that deed by suing out a writ to obtain possession of the premises on December 1, 1913. When the present bill was filed does not appear, but it was sworn to on December 6, 1913. On these facts the plaintiff seems to have acted with reasonable promptitude. What is of more importance is that no rights of any party intervened.
7. A motion to dismiss a bill in equity is not the proper way of taking the objection that necessary parties defendant have not been joined. In addition to that the objection of nonjoinder of necessary parties defendant in the case at bar was cured by the second amendment to the bill.
8. The final decree is wrong in depriving the defendant of the right which he had under the contract to leave his money at interest at 6 per cent. until the purchase price was paid in monthly installments of $25 a month.
9. The amount of the taxes paid by the defendant Bragg for the year 1913 should have been stated in the decree and the new decree should state the amount of taxes for that year and those for the year 1914. It was proper in the decree to provide that papers should be passed at the registry of deeds when the transaction was closed by payment of the final sum due. The provision that the defendant should give 48 hours' notice is not unreasonable. These provisions are not in conflict with the contract of April 1, 1913, but are proper to work out the rights of the parties under that contract.
10. There are two matters in the decree not objected to by the defendant which are prejudicial to him. He has taken an appeal from the decree and we think that they should be corrected. Under the agreement of April 1, 1913, the plaintiff is entitled to a deed which shall convey to him a good title to the 'Leonard Place' subject to the rights of the New England Telephone & Telegraph Company which have been acquired by that company since the agreement and for which the plaintiff has accepted payment. The decree requires the defendant to give the plaintiff a warranty deed. In that respect it is wrong.
11. The other provision of the decree not objected to by the defendant but which is prejudicial to his rights is that the defendant is entitled to interest at 6 per cent. upon the purchase money until it is finally paid in full and not merely 6 per cent. 'to the date of the bringing of this action' as...
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