Pickman v. Trinity Church

• Decision Date: 26 June 1877
• Citation: 123 Mass. 1
• Parties: William D. Pickman v. Trinity Church. Same v. Same
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

123 Mass. 1

William D. Pickman v. Trinity Church.

Same v. Same

Supreme Court of Massachusetts

June 26, 1877

Argued November 24, 1876 [Syllabus Material]

Suffolk. The first case was an action of contract for money had and received to recover $ 1311.57, alleged to have been paid by the plaintiff to the defendant by mistake. Answer, a general denial.

At the trial in the Superior Court, before Wilkinson, J., without a jury, the plaintiff offered to prove the following facts:

In February, 1874, the defendant made a written agreement with the plaintiff to sell and convey to him, at the rate of $ 27 a square foot, a piece of land on Summer Street in Boston bounded and described as follows: "All that lot of land bounded southerly on Summer Street, lying between the land sold by said corporation to Browning and Pickett and the land now or late of Thorndike, and extending northerly from said Summer Street to land of trustees under the will of Joshua Sears." The defendant caused the land to be surveyed, and informed the plaintiff that it contained seven thousand one hundred and twenty-six square feet, and that the price at $ 27 a square foot, under the agreement, was $ 192,402. The defendant also caused a deed to be executed conveying the land to the plaintiff, in which the consideration was stated to be $ 192,402, and the land was bounded and described as follows: "All that parcel of land in said Boston, bounded southwesterly on Summer Street, 55.81 feet; northwesterly in part on land now or late of Thorndike and partly on land of trustees under the will of Joshua Sears, 145.73 feet; northeasterly on land of the said trustees under the will of Joshua Sears, 41.34 feet; and southeasterly on land of said corporation, by a line parallel to the northwesterly line of Hawley Street, as recently established, and thirty feet distant therefrom, 148.90 feet. Containing seven thousand one hundred twenty-six square feet." The covenants in the deed were limited to the lawful claims and demands of persons claiming by, through or under the grantor. The line of the land upon Summer Street was, in fact, eight inches shorter than that given by the deed, and the contents of the land were in consequence 48.57 2/3 square feet less than those given by the deed. The line in which the plaintiff contended that this error occurred is measured from the land of Thorndike, on the northwest, to the line thirty feet distant from the side of Hawley Street, and parallel therewith on the southeast; and the plaintiff fixed the boundary of the land of Thorndike by the southeasterly face of a wall. The plaintiff paid the defendant $ 192,402, and the deed was delivered to him in March, 1874. About two months afterwards the plaintiff prepared to build on his land, and then first discovered the deficiency in measurement and quantity.

The defendant contended that the land of Thorndike was eight inches northwesterly from the place fixed by the plaintiff, that is, on the northwesterly face of the wall; that the length of the line upon Summer Street and the contents of the land were correctly given by the deed; and that the whole of the land covered by said wall had been the property of the defendant, and passed to the plaintiff by the deed; and asked the judge to rule that the action could not be maintained, because it was an action to try the title of real estate. The judge so ruled, and ordered judgment for the defendant.

No question was raised as to the correctness of the measurements of the line on Summer Street, between the points taken by the defendant as its bounds, or as to the computation of the area from those elements. The question was whether the land of Thorndike extended to the northwesterly or southeasterly side of the wall.

The plaintiff alleged exceptions to the foregoing ruling.

The second case was a suit in equity, in which the bill alleged the same facts, and prayed that the defendant might be compelled to pay to the plaintiff the sum of $ 1311.57, and interest, and for further relief. The answer contained a demurrer, that the plaintiff was not entitled to relief, for the following reasons: 1. That there was no error or mistake in measurement or calculation alleged, but only a partial failure of title, against which the plaintiff was not protected by the agreement or deed. 2. That the matters alleged in the bill might be tried and determined at law. 3. That the court had not jurisdiction of a bill praying for the payment of a sum of money, except as ancillary to a prayer for specific performance, or some other relief.

Hearing before Devens, J., who reserved the case on the bill and demurrer for the consideration of the full court.

Exceptions sustained. Bill dismissed.

F. E. Parker & J. L. Thorndike, for the plaintiff.

J. C. Ropes & W. P. Blake, for the defendant. 1. The only foundation of the plaintiff's claim is that a strip of land, covered by a wall and forming a portion of the land which the defendant conveyed or undertook to convey to the plaintiff, was the property of Thorndike, and not of the defendant, and did not pass to the plaintiff by the defendant's deed. If the strip belonged to the defendant, as the defendant contends, then it must have passed by the deed, and the plaintiff has no case. The sole question is whether the land now belongs to the plaintiff or to Thorndike. The decision of the case, therefore, involves a question of the title to real estate; and it is a settled principle of law that such a question cannot be tried in an action for money had and received. Lindon v. Hooper, Cowp. 414. Brigham v. Winchester, 6 Met. 460. Codman v. Jenkins, 14 Mass. 93. 2 Chit. Con. (11th Am. ed.) 907. See also Newsome v. Graham, 10 B. & C. 234; Miller v. Miller, 7 Pick. 133; Bigelow v. Jones, 10 Pick. 161; Tamm v. Kellogg, 49 Misso. 118; Carpenter v. Stilwell, 3 Abbott Pr. 459.

2. The case of Williams v. Hathaway, 19 Pick. 387, is decisive of the case at bar, on a different ground. It was there held, that when a deed is executed in pursuance of a contract for the sale of land, all prior proposals and stipulations are merged in the deed; and therefore that an action cannot be maintained for the recovery of the agreed price per foot, when it turns out that the number of feet conveyed is less than the number which the defendant had agreed to convey. In this view of the case, the plaintiff's sole ground for relief, supposing his claim to be true, would be on the covenants for title contained in the defendant's deed, if any. But this action is not brought on such covenants. Smith v. Evans, 6 Binn. 102. Dorsey v. Jackman, 1 S. & R. 42. Earle v. De Witt, 6 Allen 520.

Colt, J. Gray C. J., did not sit. Ames, J., absent.

OPINION

Colt, J.

The plaintiff in each of these cases seeks to recover money paid to the defendant corporation as part of the consideration for a deed of land which proved deficient in the quantity agreed to be conveyed. The first case is an action at law for money had and received. It was tried by the court without a jury. The plaintiff offered to prove, in substance, that he agreed in writing to buy and the defendant agreed to sell an estate on Summer Street, lying between land which it had previously sold to other parties and land of Thorndike, at twenty-seven dollars by the square foot; that the defendant caused the land to be surveyed, and the plaintiff, believing the survey to be correct, paid the price agreed for the number of square feet ascertained by it; that the deed to him purported to give with accuracy the length of all the lines with the contents of the lot, and bounded it on the northwest by Thorndike's land; that the line on Summer Street was in fact shorter, and therefore the contents of the estate less than stated in the deed, and that the last named line should have been measured from the southeast face of a wall, which was the true boundary of Thorndike's land, instead of the northwest face as claimed by the defendant.

The evidence thus offered shows that the quantity of land was made an essential element of the bargain, and was relied on to fix the price to be...