208 Mass. 236 | Mass. | 1911
There is nothing in this appeal beyond the application of well settled principles of law to the particular facts of this case.
The plaintiff and defendant entered into a written contract by which the plaintiff agreed to sell and the defendant to buy a parcel of land therein described. The papers were to be passed in the registry of deeds at noon on September 30, 1909, “ unless the parties hereto agree in writing to some other time and place.” The plaintiff’s attorney with the knowledge and consent of the plaintiff was employed by the defendant to examine the title, and the defendant knew that except for the examination of the title the attorney was to represent the plaintiff. The attorney found on the afternoon of September 29 that he wanted to see the terms of a bond for a deed, given in 1869, before coming to a conclusion as to the title. Thereupon he telephoned to the
When the defendant insisted upon a title which the attorney could absolutely guarantee never would cause him trouble, he asked for a better title than equity requires a purchaser to accept. A title which is good beyond a reasonable doubt is a title which equity requires a purchaser to take. First African Methodist Episcopal Society v. Brown, 147 Mass. 296. Martin v. Hamlin, 176 Mass. 180, 181.
The defendant now contends that the title is not good beyond a reasonable doubt because of the bond and because certificates are not appended to the acknowledgments of the two assignments made in Maine of the same mortgage.
The bond was a bond in the penal sum of $2,000, and was dated April 7,1869. It was conditioned upon the conveyance of two parcels of land, one of which was conveyed to the obligee by deed dated April 27, 1869, and recorded August 9, 1869, and the other (the land in question in the case at bar) was conveyed to a third person, a predecessor in title of the plaintiff, by a full warranty deed dated August 6, 1869, and recorded on August 20, 1869. It is recited in the bond that the obligor had sold the two parcels to the obligee for $7,000 of which $2,000 was to be paid down on the execution of the bond and the re-. maining $5,000 was to be paid by the obligee’s assuming an outstanding mortgage on the two parcels in the sum of $5,000, “the deed to be delivered within sixty days herefrom.” The condition also contained a reservation on the part of the obligor by which he was to have the right “to convey the premises to any person other than the said obligees upon payment to them
Having in mind the fact that the agreement recited in the bond is one sale of both parcels for one price, and the further fact that the deed dated April 27 was not recorded until after the date of the second deed, it is fairly plain that what took place was this: The obligee was not in a condition to carry -through his trade with the obligor for the purchase in question of the two parcels until he got some one to take the parcel which was not conveyed to him, and that he did not succeed in getting such a person until August 6, the date of the deed of the second parcel to the other person, and that said deed was made to the other person as the obligee’s nominee and not under the right reserved to the obligor to convey to a third person. But however that may be, we are of opinion that by the true construction of it the bond was nothing more than an agreement to pay back the $2,000 paid down on execution of the bond in case the obligor conveyed both parcels of land under the right reserved to him so to do in the deed, and that it did not affect the obligor’s right to convey it away.
The other matter relied upon by the defendant as a defect is that in two instances assignments of the same mortgage (which mortgage was discharged by coming into the ownership of the owner of the equity of redemption) were acknowledged before justices of the peace in Maine, and no certificates were recorded in the registry of deeds showing that these men held that office. These assignments were made in 1894 and 1898. It was provided by St. 1895, c. 460, that nothing contained in St. 1894, c. 253, should prevent the acknowledgment of conveyances in the form and manner lawfully used before the passage of that act. Before the passage of that act it was enough that the deed, if acknowledged in another State, was acknowledged before a justice of the peace. Pub. Sts. c. 120, § 6. It was not necessary to append to the acknowledgment a certificate that the person taking it was a justice of the peace. It was proved at the trial that the persons in question were justices of the peace.
There is nothing in the other contentions of the defendant. The plaintiff’s failure to attend at the registry of deeds on September 30 is not fatal to her case. The defendant’s attorney
Decree affirmed.