Stewart v. Finkelstone

• Decision Date: 18 May 1910
• Parties: STEWART et al. v. FINKELSTONE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

206 Mass. 28

92 N.E. 37

STEWART et al. v. FINKELSTONE et al.

Supreme Judicial Court of Massachusetts, Suffolk.

May 18, 1910

COUNSEL

Samuel C. Bennett, for appellant.

Samuel M. Child and Malachi L. Jennings, for appellees.

OPINION

RUGG J.

This is a bill in equity brought to enforce compliance with certain restrictions as to buildings imposed in 1850 in deeds of the several lots comprising a considerable tract in the south end of Boston as part of a general plan for their common benefit. The restrictions as to the character and extent of building were in perpetuity and among other matters prohibited the erection of a building nearer than 10 feet to the street line and over the rear of the lot. No question is made that the defendant violated these two by the construction of a building commenced in March, 1906. There was evidence that it was practically all up in the May following.

It is first contended that the bill cannot be maintained in this form by the present plaintiffs. The plaintiff Buttrick in his capacity as trustee was the owner of an estate within the protected area prior to July 28, 1906, when he conveyed it to the plaintiff Stewart, who was a cestui que trust, taking back a mortgage to himself as trustee. There was evidence to the effect that this transfer of title had been agreed upon a year before but was delayed on account of the appointment of a guardian ad litem. A mortgagee of real estate, even though out of possession, has such an interest as enables him to maintain an action for any part of the mortgaged estate wrongfully severed and converted into personalty. To this extent he is owner of the fee. Searle v. Sawyer, 127 Mass. 491, 34 Am. Rep. 425. The reason for this is that the value of his security may be damaged. This reason extends to any act, whether done on the mortgaged premises or off, which may adversely affect the property described in his mortgage. He may maintain an action in the nature of waste or may go into equity to prevent the commission of waste. Restrictions like these create a right in the nature of an easement in favor of, as well as impose a liability upon, the grantee of every lot, growing out of the common character of the deeds. The interest is in a contractual stipulation for the common benefit. Evans v. Foss, 194 Mass. 513, 80 N.E. 587 9 L. R. A. (N. S.) 1039. The nature of the right and obligation created by restrictions upon the use of real estate is such as to render their breach an injury to the fee of other land included within the scheme of improvement. A mortgagee is allowed to go into equity to prevent injuries threatened to the land covered by his mortgage, because any act in its nature capable of harming the value of his security may be such an injury as to entitle him to equitable relief and protection. Mortgagees are commonly permitted to bring suits in equity to nullify the orders of public boards or test the constitutionality of statutes, which in operation would impair their security. See, for example, Reagan v. Farmers' Loan & Trust Co., 154 U.S. 362-400, 14 S.Ct. 1047, 38 L.Ed. 1014; Reagan v. Mercantile Trust Co., 154 U.S. 418, 14 S.Ct. 1062, 38 L.Ed. 1030; Id., 154 U.S. 413, 14 S.Ct. 1060, 38 L.Ed. 1028. This principle includes the present case. There is no distinction in reason between sustaining a suit by a mortgagee to restrain waste threatened upon the mortgaged premises and one to prevent acts on other estates in derogation of legal rights established for the benefit of the property covered by the mortgage. See James v. Worcester, 141 Mass. 361, 5 N.E. 826; Everett v. Edwards, 149 Mass. 588, 22 N.E. 52, 5 L. R. A. 110, 14 Am. St. Rep. 462; Rockwood v. Robinson, 159 Mass. 406-408, 34 N.E. 521; Wilkinson v. Dunkley-Williams Co., 139 Mich. 621, 103 N.W. 170. The act of the defendant in violating the restrictions was a continuing wrong, and not one ended with the completion of his building. No controversy arises between the two plaintiffs as mortgagor and mortgagee respectively. They both have an interest in the subject-matter of the restrictions, which as to the defendant constitutes a unity, and they may properly join in one suit against him.

The single justice found that the plaintiffs had not been guilty of laches. This finding was based upon the hearing of oral evidence, and will not be disturbed unless plainly wrong. His memorandum states that neither plaintiff was aware of the defendant's intention to violate the restrictions until his building was up. The finding is in accordance with the testimony of the plaintiffs, to which the single justice gave credence. It has been ingeniously argued that the circumstances of ownership of other property in the neighborhood and visits there, supplemented by the direct testimony of two witnesses to the contrary, shows that this finding is unsupported, at least as to the plaintiff Buttrick. But the testimony introduced by the defendant was not believed and the inferences from other facts were not inconsistent with ignorance by the plaintiffs of what the defendant was doing. In all this there was no error. The building was up about the middle of May. The suit was brought in the following March. This deferment of suit is found to have been 'largely due to the interference of the mortgagee' of the defendant's lot, who was originally joined as a respondent in this suit, and 'who finally dissuaded the counsel selected by them [the plaintiffs] acting for them.' There is no hard and fast rule as to what constitutes laches. If there has been unreasonable delay in asserting claims or if, knowing his rights, a party does not seasonably avail himself of means at hand for their enforcement, but suffers his adversary to incur expense or enter into obligations or otherwise change his position, or in any way by inaction lulls suspicion of his demands to the harm of the other, or if there has been actual or passive acquiescence in the performance of the act complained of, then equity will ordinarily refuse her aid for the establishment of an admitted right, especially if an injunction is asked. It would be contrary to equity and good conscience to enforce such rights when a defendant has been led to suppose by the word or action of the plaintiff that there was no objection to his operations. Diligence is an essential prerequisite to equitable relief of this nature. Quiescence will be a bar when good faith requires vigilence. But so long as there is no knowledge of the wrong committed and no refusal to embrace opportunity to ascertain facts, there can be no laches. Upon the discovery of infringement of rights, such reasonable expedition is required in their prompt assertion as is consistent with due deliberation as to the proper means for relief. On the other hand, one who openly defies known rights, in...