172 Mass. 340 | Mass. | 1899
The chief difficulties in the decision of this ease arise from the loose way in which it has been conducted, and the manner in which it has been reserved for the determination of
Recurring to the bill, it appears from the agreement that the plaintiffs purported to act in making it not only for themselves but as agents of numerous other persons, who with the plaintiffs are named in it, and are described in it as the party of the first part. None of these other persons are parties to the cause. While the plaintiffs agree to sell the land, neither the bill nor the agreement alleges that the plaintiffs themselves had title to the land, and the agreement is that it is to be conveyed by deeds from its owners, for which deeds the defendant is to pay the purchase price upon their delivery, if they convey to the defendant a good and clear title free from all encumbrances. That part of the first answer, therefore, in which the defendant says that it denies that the plaintiff has a good and clear title to the land free from encumbrances, and will require the plaintiffs to prove their title thereto, is not a denial of any allegation made in the bill or necessary to the case stated by the bill. If it is to be treated as an allegation of a fact in defence, the fact is not material under the bill. The answer does not deny the alie
From the master’s report it appears that the agreement was duly made, and the necessary appropriation made by the defendant to provide for the payment of the purchase' money. The land consisted of some seventeen and a quarter acres in three contiguous parcels. On September 29, 1896, the plaintiffs ten- . dered deeds which they asserted were sufficient to convey to the defendant a good and clear title to the whole land. At this time the defendant was not in funds to pay the purchase money, and also desired time to make an examination of the title, and it was then agreed that time should be allowed for this purpose, and that in the mean time the deeds should be left with the chairman of the selectmen.
In November following the defendant notified the plaintiffs of certain defects which it asserted existed in the title. The deeds tendered were>sufficient in form to satisfy the agreement, and the defendant admitted that they were sufficient to convey good title to two of the three lots constituting the land, but asserted that they were not sufficient to convey a good title to the other lot because the title of the grantors to some fractional interests in this lot came through deceased persons of whose estates there is no record of settlement in the Probate Courts. In fact the plaintiffs as trustees owned fifty-four one-hundredths of this lot, and the defendant admitted the sufficiency of that title, and of the deeds tendered to convey it. As to the remaining forty-six one-hundredths of the lot the plaintiffs asserted that the title was in one Nancy Salisbury at the time of her death in 1865. The defendant admitted that the deeds tendered were sufficient to convey all the title which Nancy Salisbury had at her death, but asserted that her title was defective for want of settlement in probate of the estates of six persons, through whom her title
Nancy Salisbury’s title to one one-hundredth of this lot was from the heirs of John Gardner, who died August 26, 1856. After the deeds were tendered to the defendant, and after the defendant had objected that Nancy Salisbury’s title was defective because the estates of the six persons named had not been settled in the Probate Court, at some time in the same November the parties ascertained that the deed from John Gardner’s heirs to Nancy Salisbury contained no habendum, and operated to convey to her an estate for her life only, so that the title to John Gardner’s one-hundredth was then in the persons entitled to claim through his heirs. The master’s report does not state that any agreement for an extension of time was made by the parties except the previous one made on September 29, 1896, when it was agreed by the parties that time should be allowed for the defendant to make an examination of title, nor does the report state that the subsequent efforts of the plaintiffs to cure the defect in the title which came through John Gardner were made at the request or with the knowledge of the defendant. Nor does the master’s report state that upon the discovery that the deed from the heirs of John Gardner had no habendum, and that one one-hundredth of the lot was not conveyed by the deeds tendered to the defendant, the latter considered the bargain off, and would no longer hold itself bound to take and pay for the land, or that it so notified the plaintiffs.
John Gardner died at Leominster on August 24, 1856, and there is no record of the settlement of his estate in the Probate Court. There was some evidence before the master that he left a will, but the master finds that he died intestate, leaving as his heirs six children and the issue of a deceased child to whom his title passed by descent. Between John Gardner and the grantor in the deed tendered to the defendant in February, 1897, there were instances in which the title to undivided interests in the lot passed by descent from persons of whose estates there is no record of settlement in the Probate Court: (1) Two children of a daughter of John Gardner, who died before him, inherited from him, in 1856, what would have been their mother’s share, or one seven-hundredth part of the lot. (2) One of these children, William G. Thurston, died at Cincinnati, Ohio, in 1877, and his fourteen-hundredth part of the lot descended to his two children. (3) William T. Osgood died at Springfield in 1892, owning one eighty-four-hundredth of the lot, which descended to his only child. (4) J. D. C. Thurston died in New York City in 1894, owning one twenty-eight-hundredth of the lot, which descended to his sister.
Besides this, one forty-two-hundredth part of the lot passed by will of John G. White, who died at Cambridge on September 7, 1896, the affidavit of notice of the appointment of his executrix having been filed on December 1,1897, or some months after the filing of the plaintiffs’ bill; and one seven-hundredth part of
Assuming that it is our duty upon the case, as it stands, to decide whether the plaintiffs shall have a decree for specific performance, we think that the bill should be dismissed, with costs. Aside from the contention that the last deed was not seasonably tendered, and which we do not consider, most of the defendant’s objections are clearly untenable. The agreement did not call for a title every step in which should appear of record. The agreement was for a good and clear title free from all encumbrances, and it was immaterial how the title had devolved in the past if the deeds tendered were sufficient to convey to the defendant the full fee in the whole land free from encumbrances, and free from such clouds as in equity bar a decree for specific performance.
Under our decisions, where the only defence is want of good title, equity will decree specific performance when the title tendered is beyond reasonable doubt, although there are questions in respect to the title which must depend upon circumstantial evidence, and although there may be still the possibility of a defect, and a remote chance that the title may be exposed to litigation and finally held to be imperfect. Hayes v. Harmony Grove Cemetery, 108 Mass. 400, and cases cited. First African Methodist Episcopal Society v. Brown, 147 Mass. 296, 298. Cushing v. Spalding, 164 Mass. 287. Loring v. Whitney, 167 Mass, 550. Conley v. Finn, 171 Mass. 70.
The title to the share of the seven-acre lot which descended in 1892 from Osgood to his son, and of the share which descended in 1894 from Thurston to his sister, are both subject to a cloud, in that they may yet be taken for the debts of the decedents respectively. While there was no evidence before the master that there were any such debts, there has been no
Bill dismissed, with costs.