Noyes v. Johnson
| Decision Date | 19 June 1885 |
| Citation | 139 Mass. 436,31 N.E. 767 |
| Parties | Mary M. Noyes v. Samuel Johnson[2] |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Bill in equity, filed April 21, 1884, for the specific performance of an agreement to purchase land, the terms and conditions of the sale, so far as now material to the case, being as follows: "Ten days given to examine title, and if, upon examination of the records, it shall appear that any material act or thing is necessary to be done or performed, in order to perfect the title to said premises, which the seller is unable to do or perform, within a reasonable time, not exceeding sixty days from date hereof, then the sale to be void at the option of either party."
The case was heard, and reserved for the consideration of the full court, by Field, J., upon the following agreed statement of facts:
The land in question is situated at the corner of Nahant Road and Winter Street in Nahant, and is portions of lots 7 and 8 in range 7 in the subdivision of Nahant called Great Nahant. It was sold by auction by the plaintiff to the defendant, on September 13, 1883, and a contract in writing, the terms of which are above set forth, was executed by the parties.
The defendant, on being tendered a deed, refused to accept the same, on the ground that the title to lot 7, being the greater portion of the premises and embracing the frontage on Nahant Road, was defective.
The plaintiff has done all required to entitle her to specific performance, if the title shown by her is such as can be forced upon a purchaser, and the defendant has done all required to discharge himself from all obligations under the contract, if the title shown is not such.
The territory known as Nahant was originally a part of Lynn, and was in 1706 owned by the inhabitants of the town collectively. It was in that year, by a vote of the town, a copy of which is printed in the margin, [*] divided into lots and set off and assigned in fee to individual proprietors. After these Nahant lots were so set off, the portion thereof not fenced and occupied by the owners was called the "common pasture," and was managed by an association of proprietors, and records thereof were kept by persons called the clerks of the pasture. Between 1820 and 1850 the ownership of three acres of land in the common pasture entitled a person to the pasturage of one cow, and such right was commonly called a cow lease or right; and such descriptions are not infrequently found in old deeds. Said lot 7, containing two acres and thirty-four poles, was set off in the above division to one Jeremiah Shepard. The children of said Shepard conveyed their homestead lot, with all their father's common lots (without other description of the common lots than that they conveyed all such lots belonging to their father), to one Joseph Jacobs, in 1720. No settlement of said Shepard's estate is found in the Probate Court, and no deed is found of record from said Shepard or his heirs affecting the locus, except said deed to Jacobs; and no deed is found of record from said Jacobs or his heirs, (it being unknown who were the heirs of Jacobs at his decease, or who are his heirs at the present day,) or from any other person, describing the Shepard lot by definite description, until the deed of Caleb Johnson hereinafter referred to, which purports to convey land forming a part of said Shepard lot, although no reference is made in the deed to said lot by name.
The plaintiff's claim of title is as follows: Isaiah Breed's will was proved in 1809 in Essex, and the residue of his estate was devised to his grandsons Moses Breed and Jabez Breed (called junior), on condition of their making certain payments to other legatees. His inventory claimed six acres of pasture land in Nahant, without further description which were not disposed of by the will except by the residuary clause.
Moses and Jabez Breed, by deed dated January 20, 1818, conveyed three acres of land in Nahant in a different part of the "general pasture" from the locus, with a definite description.
Jabez Breed conveyed to Moses Breed, by deed dated January 21 1818, "all my right, title, and interest in the general pasture Nahant, conveyed me by grandfather Josiah Breed by his last will and testament, and is by estimation three...
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