251 Mass. 23 | Mass. | 1925
This is a suit for specific performance of a contract in writing to convey real estate. The defendants are husband and wife. The female defendant had title to the ' property and her husband agreed in the contract to join in the deed to be given and to release all right of curtesy and homestead in the premises. The contract is dated February 24, 1923, and, as afterwards changed by mutual agreement of the parties, provided that the premises should be conveyed by the defendants to the plaintiff on or before July 3, 1923, by a good and sufficient quitclaim deed “ conveying a good and clear title to the same free from all incumbrances,” except a first mortgage of $6,000 held by the Abington National Bank. It was further provided that for such deed the plaintiff agreed to pay the sum of $12,200, of which sum $200 “ have been paid, and an additional eight hundred dollars have been paid this day, and five thousand two hundred dollars . . . are to be paid in cash upon the delivery of said deed.” The contract also contained the following and other recitals: “ No commission is to be paid by the party of the first part.” “ If the party of the first part [the defendants] shall be unable to give title or to make conveyance as above stipulated, any payments made under this agreement shall be refunded, and all other obligations of either party hereunto shall cease, but the acceptance of a deed and possession by the party of the second part shall be deemed to be a full performance and discharge hereof.”
The case was heard by a judge of the Superior Court who made certain findings of fact and ordered that a decree be entered dismissing the bill. A final decree was so entered and the plaintiff has appealed from that decree.
The plaintiff in his brief states that if he is not entitled to a conveyance of the premises free from the attachment, then he desires “ and hereby requests a conveyance subject to that attachment, without of course assuming any alleged liability of the defendants in reference to which the attachment was made,” and requests leave to amend his bill accordingly.
The contract provided that the premises were to be conveyed by a quitclaim deed “ conveying a good and clear title to the same free from all incumbrances ” except a certain mortgage. It also provided that if the owner should be unable to give a good title, any payments made should be refunded, and all other obligations of either party should cease. This agreement properly construed means that if, without fault of the defendants subsequent to the execution of the contract, they are unable to give a good title, then upon refunding the payments made all obligations of both parties are at an end. The case is governed by the decision
Dennett v. Norwood Housing Association, Inc. 241 Mass. 516, relied on by the plaintiff, is distinguishable in its facts from those in the case at bar.
Where, as in the present case, the defendants without fault on their part are unable to carry out the contract, and where it appears that the plaintiff, through no fault on his part, is unable to obtain title, he is entitled to have refunded to him the amount which he has paid to the defendants. Milkman v. Ordway, 106 Mass. 232. Newburyport Institution for Savings v. Puffer, 201 Mass. 41, 48. Rosen v. Mayer, 224 Mass. 494. Seretto v. Schell, 247 Mass. 173, 177. Rose v. Watson, 10 H. L. C. 672,683,684. Torrance v. Bolton, L. R. 14 Eq. 124,135. Whitbread & Co. Ltd. v. Watt, [1901] 1 Ch. 911, 913. Fry, Spec. Perf. (6th ed.) §§ 1173,1480,1492.
If the plaintiff within fifteen days from the date of the rescript shall file an amendment to the bill praying that the sums paid by him under the contract be refunded by the defendants, they are directed within thirty days from the date of the rescript to pay the plaintiff $1,000, the amount received by them under the contract. As thus modified the decree is to be affirmed with costs of the appeal.
Ordered accordingly.