Sprague v. Kimball

Decision Date29 January 1913
Citation213 Mass. 380,100 N.E. 622
PartiesSPRAGUE et al. v. KIMBALL et al.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Jan 29, 1913.

COUNSEL

Joseph F. Hannan, Joseph D. A. Healey, and James H. Sisk, all of Lynn, for appellant Kimball.

Charles N. Barney, Henry T. Lummus, and Wilbert A. Bishop, all of Lynn, for appellant Grossman.

William H. Niles and Henry R. Mayo, both of Lynn, for appellees.

OPINION

BRALEY J.

The question for decision is whether the provisions of R. L. c 74, § 1, that a contract for the sale of lands 'or of any interest in or concerning them must be in writing signed by the party to be charged therewith,' requires us to reverse the decree. The deeds poll from the defendant Kimball, hereafter referred to as the defendant, under which the plaintiffs respectively derive title to the second, third, fourth and part of the fifth lot shown on the plan which the defendant caused to be prepared and recorded, contain this clause: 'The premises are conveyed subject to the following restrictions which shall remain in force for twenty years from the date hereof, viz.: That no building shall be erected or maintained upon the granted premises within twenty-three feet of said Bassett street, and no stable within fifty feet of said street, provided however, that steps, bay windows, verandas, cornices and other usual projections may project into said reserved space; that no public or livery stable shall be maintained thereon; that they shall not be used for mechanical, manufacturing or mercantile business, nor for any trade or occupation offensive to a neighborhood for dwelling houses only.' The plaintiffs, even if thus restrained in the use of their own estates, did not gain a corresponding right as against their common grantor in the remaining land exhibited by the plan unless the burden of the restrictions was annexed thereto under a contemporaneous enforceable agreement. McCusker v. Goode, 185 Mass. 607, 612, 71 N.E. 76; Tobey v. Moore, 130 Mass. 448; Dana v. Wentworth, 111 Mass. 291; Whitney v. Union Street Railway, 11 Gray, 359, 71 Am. Dec. 715: Rowell v. Satchell, [1903] 2 Ch. 212.

The lots were sold from time to time as purchasers could be obtained and more than three years elapsed after the first and before the last conveyance, while apparently seven years intervened between the last conveyance and the defendant's agreement for the sale of the remainder of lot 5 to the defendant Grossman without restrictions, which the bill seeks to enjoin. The plan incorporated by reference in the deeds, with the exception of the conveyance of lot 2, upon which the defendant before the transfer had built a dwelling in conformity with the building line, contains no reference to the restrictions, while the deeds are silent as to any express covenant or stipulation on the part of the defendant purporting that in future sales similar restrictions were to be imposed. But the restrictions upon the mode of occupation as expressed in the deeds are uniform and the judge finds that the defendant intended, and so informed the plaintiffs at the time of their respective purchases, to subject the lots as they were sold to similar restrictions for their mutual advantage and protection. It is moreover plain from the evidence that each plaintiff was induced by the defendant's promise to buy and build, being assured that the entire neighborhood would be restricted to residential putposes. It would be a forced conclusion, in view of the general scheme originated by the defendant, as shown by the plan, the deeds and the circumstances under which the plaintiffs severally bought, that the restrictions were intended as the mere reservation of personal rights to be enforced for the sole benefit of the defendant or her heirs so long as any portion of the tract remained unsold. The right invoked by the plaintiffs accordingly attached to each lot as it was granted for the mutual benefit of the grantees, although the grantor while he owned the remainder and observed the conditions of the contract of sale, could have compelled in equity a complaince with the restrictions by the lot owners of their successors in title. Jeffries v. Jeffries, 117 Mass. 184; Peck v. Conway, 119 Mass. 546; Sanborn v. Rice, 129 Mass. 387, 396, 397.

It is not a covenant running with the land at law, but it is an equitable easement or servitude passing with a conveyance of the premises to subsequent grantees. Parker v. Nightingale, 6 Allen, 341, 83 Am. Dec. 632; Lvarson v. Mulvey, 179 Mass. 141, 60 N.E. 477; Evans v. Foss, 194 Mass. 513, 80 N.E. 587, 9 L. R. A. (N. S.) 1039, 11 Ann. Cas. 171. While only the mode of use is regulated and the fee passed, yet he estate is encumbered with the inherent restrictions which create an equitable, enforceable interest. Tobey v. Moore, 130 Mass. 448; Hano v. Bigelow, 155 Mass. 341, 29 N.E. 628. It is settled by our decisions, that under R. L. c. 74, § 1, and chapter 127, § 3, an equitable as well as a legal interest in land must be evidenced by some sufficient instrument in writing or it is unenforceable. Richards v. Richards, 9 Gray, 313; Glass v. Hulbert, 102 Mass. 24, 32, 33, 3 Am. Rep. 418; McCusker v. Goode, 185 Mass. 607, 612, 71 N.E. 76.

If the front building line, with any language indicating the nature of the restrictions, had appeared on the plan, the defendant would have been estopped to deny an...

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