255 Mass. 186 | Mass. | 1926
This bill was filed January 16, 1924, but, the original plaintiff Libbie A. Balcom having died April 22,1924, her executor Willard J. Balcom was admitted to prosecute the suit February 21, 1925. We shall refer to the testatrix as the plaintiff.
The parties derive title by mesne conveyances under a deed dated February 22, 1869, given by George H. Kuhn and Joseph A. Holmes, executors of the last will of Edward T. Hastings, to James W. Packer, which refers to a plan of the land on record in the registry of deeds, where the deed also was recorded. The deed included four parcels, but only the first parcel is here material. It was thereafter divided into twenty-two lots as shown by a plan forming part of the record. If this plan is followed, the plaintiff owned lot six, and the defendant Normile lots seven and eight, all of which abutted on Pearl Street, named in the original deed. We assume on the record that the restrictions enumerated in the deed were binding not only on Packer, but on all those deriving titlé from him. Evans v. Foss, 194 Mass. 513, 515. The following is the only restriction pertinent to the case at bar: that the land should not be used “for any purpose which shall tend to disturb the quiet or comfort of the neighborhood.”
It was undisputed that the defendant Normile had obtained a permit from the public authorities to build on lot seven, which is contiguous to lot six, a garage for the storage of six cars, with a driveway leading to Pearl Street, the foundations of which had been laid when the plaintiff brought suit on the restriction to enjoin its construction and maintenance, The evidence was taken by .a commissioner. We have read it. The judge was warranted in making the following findings: “The evidence showed merely that the garage was to be erected for six cars and did not indicate whether it was to be used for public or private purposes.
If the plaintiff cannot prevail, the motion of the mortgagee who held a mortgage on the plaintiff’s lot to be admitted as a party plaintiff becomes immaterial, and, finding no reversible error in the plaintiff’s exceptions taken during the trial in so far as argued, the decree dismissing the bill is affirmed with costs of the appeal.
Ordered accordingly.