Town of Belmont v. Massachusetts Amusement Corp.

• Decision Date: 10 February 1956
• Citation: 132 N.E.2d 172,333 Mass. 565
• Parties: TOWN OF BELMONT v. MASSACHUSETTS AMUSEMENT CORPORATION and another.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 172

132 N.E.2d 172

333 Mass. 565

TOWN OF BELMONT v. MASSACHUSETTS AMUSEMENT CORPORATION and another.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Dec. 8, 1955.

Decided Feb. 10, 1956.

Earle C. Parks, Town Counsel, and Melvin F. Lee, Boston, for plaintiff.

Robert W. Meserve and John R. Hally, Boston, for defendants.

Before QUA, C. J., and WILKINS, SPALDING and WILLIAMS, JJ.

QUA, Chief Justice.

The town seeks by this bill in equity a reconveyance to it by the defendant Massachusetts Amusement Corporation of a parcel of land at the corner of Trapelo Road and Williston Road in the plaintiff town, upon payment by the town to that defendant of $20,000. A demurrer by the defendant above named was overruled and, after hearing on the merits, a final decree was entered granting against that defendant the relief prayed for and dismissing the bill as to the other defendant Ethel L. Garrity. The Massachusetts Amusement Corporation, hereinafter called the defendant, appealed from the interlocutory and final decrees. The evidence is reported. The appeal from the interlocutory decree overruling the demurrer is not separately argued, presents no question not open on the appeal from the final decree, and will not be further considered.

There seems to be no serious question as to most of the subsidiary facts. In 1923 the town took the land for a fire station, but never used it for that purpose. At a town meeting on March 11, 1946, the town voted by more than a two thirds vote that the land be sold 'in such manner, upon such terms and conditions and for such price or prices as the board of selectmen may determine' and that the board be authorized and instructed to execute and deliver the deed 'in such form and upon such terms as it deems advisable.' In July, 1946, one Winters and the defendant Garrity jointly addressed to the selectmen an offer to purchase the land for $20,000 which contained among other provisions a so called condition that a building satisfactory to the selectmen would be erected within five years from the passing of the title. On July 22, 1946, the selectmen voted to sell and convey the land to Garrity and Winters 'upon the following conditions * * * (2) That a building will be erected on said land the plans of which building are to be submitted to the Board of Selectmen for approval, said building to be of suitable design or construction adapted for mercantile purposes. If it is not possible or feasible for said grantees or their nominee or nominees to construct a building which meets the approval of the Board of Selectmen of the Town of Belmont within five (5) years, the said premises are to be reconveyed to the Inhabitants of the town of Belmont and the purchase price which has been received by the Town of Belmont is to be refunded to the holder of title at the time of said reconveyance.' A copy of this vote was delivered to Garrity, who made a deposit of $500. The purchase was completed by a deed of the town signed by the selectmen, dated February 11, 1947, and running to Garrity alone. Winters had died in the meantime. The deed purported to convey a fee simple without covenants. It referred to the vote of the town of March 11 as the source of the selectmen's authority to convey, but it made no reference whatever to the vote of the selectmen of July 22, 1946, and contained no condition or provision relative to the erection of a building or to a reconveyance in the event of failure to erect one. The vote of the selectmen was not recorded with the deed. The judge found, however, that 'it was the intention of both the town and the defendant Garrity to accept the deed subject to the condition imposed by the vote of the selectmen.' Under date of March 6, 1947, Garrity entered into an agreement in writing with one Kilpatrick by which she agreed to sell the premises to Kilpatrick for $55,000. This agreement provided for a conveyance free from encumbrances, except the 'condition' relative to the erection of a building or reconveyance to the town repeated in the same terms as those contained in the vote of the selectmen of July 22, 1946. The town was in no way a party to this agreement.

Upon examination of the title preparatory to the carrying out of this agreement of sale it was discovered that the vote of the Town of March 11, 1946, authorizing the selectmen to convey the premises had failed to specify any minimum price as required by G.L. (Ter.Ed.) c. 40, § 15. To correct this omission a special town meeting was held on October 29, 1947, and again the town voted by more than a two thirds vote to authorize the selectmen to fix the terms of sale, except that the price should not be less than $20,000. On November 5, 1947, Kilpatrick assigned to the defendant all his rights in his agreement with Garrity of March 6. On November 7, 1947, the selectmen voted that a deed of the property be executed and delivered to Garrity in consideration of $20,000. This vote contains no reference to the previous vote of the selectmen of July 22, 1946, or to any provision or condition as to the construction of a building or as to reconveyance in the event of failure to construct a building. Under date of November 7, 1947, the town, acting through the selectmen, gave a second deed of the premises to Garrity. This deed contains quitclaim covenants. It does not mention the earlier deed. Neither does it mention the vote of the selectmen of July 22, 1946, nor does it contain any condition or provision relative to the erection of a building or to reconveyance in the event of failure to erect a building. The judge found, nevertheless, that this deed, like the previous one, was intended by the parties thereto (the town and Garrity) to be subject to the 'condition' incorporated in the vote of the selectmen of July 22, 1946. Under date of November 10, 1947 Garrity conveyed by deed with quitclaim covenants to the defendant. This deed, notwithstanding the provisions in the agreement between Garrity and Kilpatrick, contains no reference to the vote of the selectmen of July 22, 1946, or to any condition or provision relative to the erection of a building or to reconveyance in the event of failure to erect a building. The judge finds that the defendant, when it took title, had full knowledge of this 'condition' or provision which he finds was intended to be imposed in connection with the two conveyances from the town to Garrity.

No building has been erected on the premises, and the defendant contends that it is not bound by the vote of the selectmen of July 22, 1946, or by any understanding relative to the erection of a building between the town and Garrity. On September 10, 1951, the selectmen voted that the town repurchase the property for $20,000 'in accordance with the terms of the agreement made between the Town and Ethel L. Garrity as recited in a vote of this Board passed July 22, 1946.' The defendant declines to reconvey for that price. This suit to compel such reconveyance was brought by writ dated September 11, 1951. ¹

The trial judge took the view that the town had 'an equity' in the premises and that the defendant took with notice of this 'equity' and so is bound by it. It may be that the evidence justified a finding that the defendant took with notice of any 'equity' that the town may have had in the land; but our difficulty is in trying to discover that 'equity.' An equitable interest in land of another cannot arise out of some vague consideration of abstract justice but must be created as the result of some conveyance, contract, fraud, or other circumstance recognized by law as creating such an interest. In the present case...