Baker v. Hall

158 Mass. 361 | Mass. | 1893

Barker, J.

1. While the memorandum gives with precision the dimensions of the lot to be sold, and states that it was situated on Beacon Street, it does not sufficiently identify the land, unless by reference to the sketch.' Without that reference, as the lot to be sold is part of a much larger parcel, there is not enough to indicate from what part of the whole it is to be taken, but its position is made certain, and the lot completely identified by the sketch.

For the purpose of interpreting the document, we may put ourselves “ in the position of the parties, and ascertain by oral evidence their relations to any property which would satisfy the terms of the memorandum ”; Farwell v. Mather, 10 Allen, 322, 324; and we are also to presume that the words used to describe the land relate to land owned at the time by the vendor. Hurley v. Brown, 98 Mass. 545. The same presumption is, of course, to be applied in interpreting the sketch which is part of the memorandum. Applying these rules the sketch indicates with certainty that the land to be sold is the westerly end of the vendor’s tract, and that it is separated from Centre Street by one lot only, which lot is the property of a third person. Centre Street is indicated on the west end of the sketch, and adjoining the street upon the east is a lot enclosed, except in the rear, by boundary lines, and marked “ Now or formerly of Emily Northend.” Another lot is indicated as adjoining on the east the one last mentioned, and it is clearly identified as the lot to be sold by its boundary lines and correct figures of dimension, and also by the two strips marked, “ Restricted,” on its easterly side. Adjoining the second restricted strip is a larger parcel enclosed in boundary lines. Without resort to extrinsic evidence, the fair interpretation of the sketch is that the land to identify which it was drawn is separated from Centre Street by one lot only, — a lot not owned by the vendor, because marked as “ Now or formerly of ” a third person, — and that it is located at the west end of the vendor’s larger tract, of which it is a part. A resort to competent oral evidence would merely corroborate this interpretation of the sketch, by showing that the vendor did not own the one lot shown on the sketch as next to Centre Street; and that his land adjoined that lot on the east. Nor does the fact, which comes from extrinsic evidence, that all the land shown on the sketch was once owned by Emily Northend raise an ambiguity. The words, “Now or formerly of Emily Northend,” are applied' by the sketch to a single parcel only, and must be taken in the sense in which the phrase “'now or formerly of” is commonly used in conveyancing; namely, as indicating that the parcel to which it is applied is a monument for the identification of other lands which are under description.

2. The defendant contends that the plaintiff is not entitled to relief because he was not in a condition to complete the conveyance" on April 16, 1891. The decision of this question turns upon the construction to be given to the proviso annexed to the clause of the memorandum, fixing the day when the premises were to be conveyed. We are of opinion that the proper construction of the instrument is that the premises were to be conveyed on or before the day named, unless a release from the mortgages to which the land was subject could not be obtained by that day, and that in the latter event the transfer was to be completed whenever, within a reasonable time, the release could be obtained. See Folsom v. McDonough, 6 Cush. 208. The defendant relies upon the concluding sentence of the proviso, “ other terms and conditions remaining the same,” in support of his theory; which is that the transfer of title was to be made on the day named, whether the mortgage had been discharged or not, and that the only effect of the proviso would be to give to the vendee some allowance of interest, if the release had not been obtained. But the natural signification of the sentence is that the terms of the instrument other than those of the clause to which the proviso applied were to remain the same, and we cannot depart from the natural meaning when the result would be to compel one party to deliver a deed, the covenants of which would be at once necessarily broken, and the other party to pay in full for land mortgaged for much more than its price.

3. It is conceded that the deed without seals was not a good deed on April 16, 1891, but, as by the true construction of the memorandum the plaintiff had a further reasonable time in which to perform his agreement, that fact is not conclusive against him. When the deed had been sealed and was again offered, it was declined because the time had gone by, and with a declaration that the defendant would have nothing to do with the property. If, therefore, the fact that the deed when last offered had not been acknowledged since the seals were affixed made it defective, upon which we express no opinion, the defendant, having absolutely, and upon other grounds, refused to accept performance of the contract of sale, cannot now avail himself of the defect. Wells v. Day, 124 Mass. 38. See also Scanlan v. Geddes, 112 Mass. 15; Linton v. Allen, 154 Mass. 432, 438.

As the rulings of the presiding justice were all correct, according to the terms of the report, there is to be a

Decree for the plaintiff.