Welch v. Austin

Decision Date06 January 1905
Citation187 Mass. 256,72 N.E. 972
PartiesWELCH v. AUSTIN et al.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

C. H. Tyler, O. D. Young, and B. D. Barker, for petitioner.

Dunbar Rackemann & Brewster and Harrison M. Davis, for respondents.



The only question before the court is the nature and extent of the possible restriction, stipulation, or agreement created by the deed of Oliver Brewster to John Foster dated March 11, 1863, recorded with Suffolk Deeds, libro 825, folio 151. We cannot accede to the petitioner's contention that the agreement in question is nothing more than a personal covenant on the part of John Foster. The case of Clapp v. Wilder, 176 Mass. 332, 57 N.E. 692, 50 L. R. A. 120, on which the petitioner has largely relied in support of that contention, went on the ground that the thing provided for there was put in the form of a common-law condition; and although a stipulation put in the form of a common-law condition may operate not only as a condition, but as an equitable restriction as well (Hopkins v. Smith, 162 Mass. 444, 38 N.E. 1122), there was not enough in that case to show that the common-law condition there in question operated also as an equitable restriction.

The petitioner has relied, also, on the case of Badger v. Boardman, 16 Gray, 559. That case must be taken to rest on special circumstances. It was heard on the merits, and it is stated in the report that Downing, the grantor in the deed containing the 'restriction' which the plaintiff sought to enforce, 'was the owner of all these parcels of land, which were described on a plan thereof dated the 12th of December, 1843, and recorded in the registry of deeds.' It must be assumed that that plan was before the court, although it is not set forth or otherwise described in the report. On an examination of it in the registry of deeds it appears that the question then before the court was not the case of an owner of two lots selling one of them, as in the case at bar, but a more complicated situation. The grantor in that case owned seven lots on the westerly corner of Bowdoin and Cambridge streets in the city of Boston. Five of the seven lots faced on Bowdoin street and two on Cambridge street. The lot conveyed to the defendant was lot No. 3. The lot which eventually came to the plaintiff was lot No. 4, next north of No. 3; and it was conveyed by the original grantor after lot 3 was conveyed. The lot on the corner was lot No. 5. All these lots faced on Bowdoin street. Lots 6 and 7, facing on Cambridge street, ran back across the rear end of lots 4 and 3 to the southerly line of lot 3. There was nothing to indicate that the 'restriction' in question forbidding any buildings or shed ever being erected westerly of the main building (on lot 3) 'of a greater height than those now standing thereon' was for the benefit of lot 4 rather than of lots 6 and 7. In this situation the court seems to have cut the knot by holding that it was a personal covenant.

Skinner v. Shepard, 130 Mass. 180, the other case principally relied on by the petitioner, is a case where an action was brought for breach of a covenant of warranty in a deed from the defendant to the plaintiff. The breach relied on was that in a deed under which both claimed title there was a provision that no building should ever be placed within 25 feet of Green street, on which the premises faced. The only fact in connection with this deed put in evidence by the plaintiff as showing that this provision constituted an equitable restriction, and not a personal covenant, was that the grantor, at the date of the deed in question, owned a parcel of land on the other side of a railroad which bounded the granted premises on the west. The granted premises were a tract containing over 65,000 square feet of land, and the provision in question was coupled with a provision that the occupant of a part of the premises next the railroad, used for a lumber yard, should have six months in which to remove his lumber. The two provisions were not only coupled together, but were part of the same sentence. Under the rule previously laid down in Episcopal City Mission v. Appleton, 117 Mass. 326, 329, each part of this provision must receive the same construction. It is plain that the latter part of the provision, requiring the lumber to be removed within six months, was not an equitable restriction. On these facts it was held that the plaintiff had not made out that the provision in question was anything more than a personal covenant. In the case at bar the things provided for are stated to be 'restrictions and agreements,' subject to which the land was conveyed. From the nature of the provisions, namely, a set-back from the street in front, a limit to the depth of the house on the back, and a specified facade, which was to make the house to be built on the lot conveyed one building with the house...

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