Siegel v. Shaw

• Decision Date: 07 March 1958
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: David H. SIEGEL et al. v. Diana D. SHAW.

Page 393

148 N.E.2d 393

337 Mass. 170

David H. SIEGEL et al. v. Diana D. SHAW.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued Dec. 4, 1957.

Decided March 7, 1958.

Joseph Schneider, Boston (Norman M. Goldberg, Boston, with him), for plaintiffs.

Howard W. Cole, Boston, for defendant.

Before, WILKINS, C. J., and RONAN, SPALDING, WHITTEMORE and CUTTER, JJ.

WHITTEMORE, Justice.

The plaintiffs sued to recover their deposit made under an agreement for the purchase of land in Newton. These are the defendant's exceptions to the direction of a verdict for the plaintiffs Taking the evidence most favorably for the defendant the issue is this: May a seller who has agreed to convey 'a good and clear record and marketable title * * * free from encumbrances' require the buyers to take the premises subject to a public easement for a sewer constructed and in place, of which the buyers, from inspection of the premises, had knowledge at the time the agreement was made, and of which there is an uncertain indication, seen by the buyers, on the plan which was attached to and incorporated in the agreement, as a part of the description of the premises ('Containing 183.8 ± acres of land according to a plan hereto annexed * * *')?

The easement, beneficial or not, was an encumbrance (Kellog v. Ingersoll, 2 Mass. 97, 101; Harlow v. Thomas, 15 Pick. 66, 68; Bennett v. Sheinwald, 252 Mass. 23, 28, 147 N.E. 28; Schon v. Odd Fellows Building Association, 255 Mass. 465, 468, 152 N.E. 55; Rubenstein v. Hershorn, 259 Mass. 288, 294, 156 N.E. 251; Queenin v. Blank, 268 Mass. 432, 435, 167 N.E. 680; Miller v. Schwinn, Inc., 72 App.D.C. 282, 113 F.2d 748, 751, and cases cited) which, manifestly, the seller could not, in all probability, remove (Gillis v. Bonelli-Adams Co., 284 Mass. 176, 178-179, 187 N.E. 535). If the buyers might refuse title because of the encumbrance, the purchase and sale agreement was, in its operative effect, only an option binding on the seller (see Rubenstein v. Hershorn, 259 Mass. 288, 295, 156 N.E. 251) but not on the buyers if for any reason they decided they did not wish to assume ownership. The rule may be a hard one in the particular case, as here, where the jury could have found that the buyers chose to stand on the defect in title because they were having difficulty in raising the purchase price and had been refused an extension. But it is the well established law that the tendered deed must convey a title in accordance with the requirements of the agreement, and the knowledge of the buyers in respect of existing encumbrances is irrelevant under the parol evidence rule. Harlow v. Thomas, 15 Pick. 66, 69; Spurr v. Andrew, 6 Allen 420, 422; Rubenstein v. Hershorn, 259 Mass. 288, 293, 156 N.E. 251; Queenin v. Blank, 268 Mass. 432, 167 N.E. 680.

The nub of the case is whether the indication on the plan of a possible sewer easement is a limitation of the undertaking to convey a title free from encumbrances. We do not think it is. On the plan are two parallel dotted lines, extending on an irregular course from a plot marked 'City of Newton' entirely across the property and to and through the plot which bounds the land on the west and is marked 'City of Newton Water Works Reservation.' Between the lines at several places are printed the words 'sewer & drain' and the designation '50' wide.' It is apparent that the lines and markings are intended to show the course of a sewer or drain. The plan is indorsed 'April 21, 1938. Compiled from office and public records by Henry F. Bryant & Son, Engrs. * * *.' This indorsement, we think, is insufficient as an assertion that the shown course of the sewer and drain is the course of an existing easement, and there is nothing else on the plan which affirms this expressly or by necessary implication. In the circumstances we do not think that the reference to the plan is the equivalent of a discription of the premises to be conveyed as 'a parcel containing 183 ± acres and subject to an existing sewer and drainage easement.' Nor do we think that the agreement may be construed as an agreement to buy the designated land, subject to whatever existing easement or rights, if any, may underlie the 'sewer & drain' lines shown on the plan. There is no ambiguity in the agreement. The reference to the plan is in the usual form to make more precise the boundaries and acreage. See Harlow v. Thomas, 15 Pick. 66, 68. It does not operate to cloud the meaning of the words 'good and clear record and marketable title * * * free from encumbrances.' In construing the unambiguous written instrument, we must exclude our knowledge that, as the jury could have found, the buyers knew about the easement and the constructed sewer, and were counting on it as an attractive aspect of the land for development for house lots. Doing so, and confining our view to the written agreement, the greatest effect of the plan is to show, within the instrument, a possible encumbrance which, for all that appeared, could be removed, and which the buyers were entitled to have removed under the stated terms of the bargain. Indeed, for all that appeared in the instrument, the indication could have been of a 1938 proposal for a sewer line which was never in fact carried forward into an easement or a constructed sewer.

We intend no suggestion as to the effect of a more precise reference to an existing easement on an incorporated plan.

The existence of the sewer easement was shown on the property by manholes. The jury could have found that the plaintiffs or one of them saw the manholes. This does not affect the result. Queenin v. Blank, 268 Mass. 432, 435-436, 167 N.E. 680. The written agreement controls. We do not think we should change the rules for construction of written instruments, especially those affecting the transfer of real estate, to try to fit the equities of a particular case. The importance and effect of an agreement to convey 'free from encumbrances' are well...