| Mass. | Mar 15, 1869
1. The first position, advanced by the counsel for the petitioners, is, that the agreement of Joseph Bell was upon conditions precedent, all of which had not been complied with when the land was taken for the street. The provision is : “ On the condition that all the conditions on the part of those who have signed before me are carried into effect and the street widened accordingly.” The “ conditions ” on the part of those
The main purpose of the condition was, undoubtedly, that the whole street should be “ widened accordingly.” As the city did not execute the agreement, and did not, and could not, become bound to widen the street, otherwise than by an actual location thereof, it may be more consistent with the relations of the parties, and the security of the rights of the landowners, to regard the stipulation, in this respect, as a condition precedent. But it does not purport to be, and it could not be made, a condition precedent to the taking of the land. That is a public right, the exercise of which, by the proper tribunal, could not be abridged by any agreement of the city. The agreement contemplates that that right will be exercised, under the usual conditions, “ whenever, in the opinion of the board of aldermen, the public safety and convenience require ” it. Of course the legal right of the landowner to have his damages assessed arises at. once upon such taking; and, until the city has fully complied with the condition, there is no answer to his claim of damages. But when that compliance is complete, the city is entitled to have the grant, release and surrender, “ without any claim or demand for remuneration, compensation or damages therefor.” It is immaterial when this right to a release is acquired; whether it precedes, accompanies or follows the establishment of the street, so that it be before the actual assessment of damages. There would be no question of this, in case of an actual release. The agreement for such a release operates
2. Demand for a deed was not requisite. Insisting upon payment of damages, after compliance with the conditions of the agreement, was a breach, if it were necessary to show a breach.
3. The agreement, it is true, was without consideration, and not binding as a coi tract until the city supplied the consideration, and gave it legal force, by “taking so much of the land of John C. Gray,” f< r the purpose of widening Summer Street, as was therein stipulated. If that was done within a reasonable time, or before the offer was withdrawn, the consideration was supplied and the agreement became binding and irrevocable. Foster v. Boston, and Crocket v. Boston, cited above. Boston & Maine Railroad v. Bartlett, 3 Cush. 224. Old Colony Railroad Co. v. Evans, 6 Gray, 25. Goward v. Waters, 98 Mass. 596" court="Mass." date_filed="1868-01-15" href="https://app.midpage.ai/document/goward-v-waters-6415267?utm_source=webapp" opinion_id="6415267">98 Mass. 596. The completion of the widening was to be whenever the board of aldermen should be of opinion that it was required for the public safety and convenience.
4. It was not a mere offer to make a contract; nor does it stand like an authority conferred to bind the party by an act to be subsequently performed. It was a complete contract in itself, when it was executed, lacking only a consideration to entitle it to legal enforcement. By its terms that consideration was not to be made to Joseph Bell personally. It required no act on his part for its receipt, and no assent by him. The death of Joseph Bell, therefore, did not terminate the agreement, nor
5. This contract could be specifically enforced upon the land, against the heirs, and against all others claiming under them with notice. Rev. Sts. c. 74, § 8. Gen. Sts. c. 113, § 2; c. 117, § 5. Story Eq. § 788. Under our statutes, the want of a seal, and the omission to name heirs, make no difference in their liability. Hall v. Bumstead, 20 Pick. 2. It does not appear, from the agreed statement of facts, whether or not the petitioners, or either of them, are chargeable with notice of the agreement. It was contended, in the argument, that Joseph M. Bell was purchaser, for value, of four fifths of the land ; and that, as to so much of his estate, he was not bound by the agreement of his father, Joseph Bell, for want of privity. If he had actual notice of the agreement, at the time or before he purchased, he would be affected thereby. But even if he purchased without notice, he may not be discharged from liability. If the estate of Joseph Bell had not been settled by the usual forms of administration, the obligation of this contract remained as a lien upon the whole estate. If it had been thus fully settled before the accruing of this demand, then the heirs are bound, each one of them to the extent of the property inherited by him. We suppose the one fifth interest, inherited by Joseph M. Bell, to be more than sufficient to cover the entire amount of damages recoverable on account of the widening of the street; and, as against him, it would in that case be a sufficient answer to his claim. When such a liability is to be enforced in equity, all heirs within reach of process are required to be made parties, and the liability is apportioned, and judgment rendered distributively. Wood v. Leland, 1 Met. 387. The liability of each is not restricted to his equal proportion, but is so adjusted as to secure to the creditor his entire debt. It is suggested in Wood v. Leland, 22 Pick. 503, and again in Hayward v. Hapgood, 4 Gray, 437, that, in an action at law, only an aliquot part of the debt can be. recovered from each one of the heirs, without regard to the means of enforcing the claim against the
As to the other petitioners, if they are not chargeable with notice, and there is nothing in their lease, or in their relations to the subject matter, which may affect them, they are entitled to recover such damages as they suffer from the taking of a part of their leasehold interest. But as the agreed statement does not furnish all the facts upon which to determine the question of their rights, and as there is no assessment of the damage to their separate interest, the case must be remitted for further proceedings in the superior court.