178 Mass. 172 | Mass. | 1901
This is a petition for the assessment of damages caused by the taking of Hobbs Wharf in Boston under the right of eminent domain. The taking was on January 5, 1897. At that time the petitioners were in under a written lease which had been extended to May 1, 1897. The other parties interested have been settled with and there is no question about them. The petitioners offered to show an oral agreement extending their lease for a year more, made before January 5, and a written memorandum of the same made after that date. These were excluded by the court, and the petitioners excepted. The petitioners also excepted to the exclusion of an agreement under seal, made before the taking, between the owners of the wharf and the respondent, by which the owners covenanted to convey the premises on or before a certain date, free of incumbrances except a lease “ expiring May 1, 1897, with privilege to the lessee of one additional year from that date,” and by which the parties agreed that if the property was taken by right of eminent domain before the conveyance the price fixed should be the damages paid. Other exceptions will be mentioned later.
We think it quite plain, notwithstanding the acute argument for the petitioners, that the exclusion of the foregoing evidence was right. Pub. Sts. c. 120, § 3.
To begin with the question of pleading, it was not necessary for’the respondent to plead the statute. It was a stranger to the petitioners’ title, and, when the petitioners alleged that they had a good one, had a right to call on them to prove it without undertaking to specify in what respect it might turn out bad. A remote and imperfect analogy may be found in the rule that a stranger need not make profert of a deed. Shep. Touchst. 73. Moreover the petition itself sets out the facts, and would have
In the next place, the operation of the statute is not confined to privies, but the respondent can rely upon it. The natural interpretation of the words of Pub. Sts. c. 120, § 3, is that the writing required for the creation of an interest in land is more than a memorandum of the constituent act, that it is itself the constituent act. It seems to us clear that the writing must have a part at least in the creation of the estate. But if a different construction should be adopted in view of the history of the section and upon a comparison with Pub. Sts. c. 78, § 1, the result would not be changed.
At the date of the taking the petitioners had no more estate beyond May 1, as against the respondent, than they had as against the owners of the wharf. To that extent at least the words of the act are explicit. The statute here is not dealing with promises, in which case it naturally would be directed only to the rights of the parties to a contract, but with estates, which are interests in rem, good against all the world. It therefore is dealing with the rights of all the world, and when it says that an estate created without writing shall have the effect of an estate at will only, it affects the reciprocal rights of the tenant and of any one else who may be concerned in the nature of that estate.
The petitioners, having had no estate beyond May 1 at the date of the taking, could not get one by the retroaction of a letter from the former owners, who were strangers to the land at the time when it was written. It seems to be settled in England with regard to sales of chattels under the seventeenth section of the statute of frauds, (Pub. Sts. c. 78, § 5,) that the memorandum does not retroact so as to affect third persons. Morgan v. Sykes, stated in Coats v. Chaplin, 3 Q. B. 483, 486. Stockdale v. Dunlop, 6 M. & W. 224, 233. Felthouse v. Bindley, 11 C. B. (N. S). 869, 877. Benjamin, Sales, (7th Am. ed.) § 40 a, note m. See Marsh v. Hyde, 3 Gray, 331, 333; Bird v. Munroe, 66 Maine, 337, 343. In Leadlay v. McRoberts, 13 Ont. App. 378, 383, where it is said that an act satisfying the statute relates back to the date of the oral contract, the judge is speaking of the effect as between the parties, — a matter which we need
The case of Gardner v. Rowe, 2 Sim. & Stu. 346 ; 5 Russ. 258, relied on by the petitioners, is not inconsistent with our decision. That was the case of a trust declared by a bankrupt after the bankruptcy. Assignees in bankruptcy are successors per universitatem, and stand in the shoes of the bankrupt. Chipman v. Manufacturers’ National Bank, 156 Mass. 147,149. Phosphate Sewage Co. v. Molleson, 5 Ct. of Sess. Cas. (4th Ser.) 1125, 1138. Property held in trust does not pass to them. 5 Russ. 262. Low v. Welch, 139 Mass. 33. And as was observed in argument, 2 Sim. & Stu. 348, the statute of frauds did not require trusts to be created by writing but only to be proved by it. So, when the only change since the beginning of the alleged trust is the death of the cestui que trust, it may be that the trustee still can make a declaration which will be effectual as to the interests of the heirs and widow. Ambrose v. Ambrose, 1 P. Wms. 321. But the cases of Gardner v. Rowe and Ambrose v. Ambrose are inapplicable to the case of an instrument which is more than a memorandum. They also are inapplicable to a case where the person to be affected comes in not in privity but by a new, adverse and paramount title. Even a disseisor takes free of trusts, at least by the old law. Chudleigh's case, 1 Co. 120, 122 a. Lewin, Trusts, (10th ed.) 9, 10, 13. The prevailing opinion seems to be that a tax title is a new title and not merely the sum of all old titles. Hefner v. Northwestern Ins. Co. 123 U. S. 747, 751. Brewer v. District of Columbia, 5 Mackay, 274, 278. McQuity v. Doudna, 101 Iowa, 144, 146. Textor v. Shipley, 86 Md. 424, 438. See Harrison v. Dolan, 172 Mass. 395, 398. And if there is such a thing as a new title known too the law, one founded upon a taking by the right of eminent domain is as clear an example as can be found. See Williams, Pers. Prop. (15th ed.) 46.
It very properly was not argued that the reference to the tenants’ supposed rights in the agreement between the owners and the respondent satisfied Pub. Sts. e. 120, § 3. We need not go into the reasons further than we have done at the beginning of our discussion. Shippey v. Derrison, 5 Esp. 190, seems to have
It appeared that the owners had been in the habit of renewing the petitioners’ lease from time to time, and an attempt was made to give this fact the aspect of an English customary tenant right. The evidence merely showed that the landlords and the tenants were mutually satisfied and were likely to keep on together. It added nothing except by way of corroboration to the testimony that they both intended to keep on. Changeable intentions are not an interest in land, and although no doubt such intentions may have added practically to the value of the petitioners’ holding, they could not be taken into account in determining what the respondent should pay. They added nothing to the tenants’ legal rights, and legal rights are all that must be paid for. Even if such intentions added to the saleable value of the lease, the addition would represent a speculation on a chance, not a legal right. The court was right in excluding expert evidence as to an increase in value from that source. The King v. Liverpool Manchester Railway, 6 Nev. & Man. 186, 191; S. C. 4 Ad. & El. 650. Under our statutes we are not prepared to follow Baltimore v. Rice, 73 Md. 307. For as under the statutes the land was to be valued as a whole and then the amount subdivided, (St. 1896, c. 516, § 23 ; Pub. Sts. c. 112, §§ 95,100, 107 ; c. 49, §§ 18, 22, 25,) the view opposite to ours would allow the tenants to diminish the share of the landowners on the strength of the latter having entertained an intention which they were free to change if they chose. See Phyfe v. Wardell, 5 Paige Ch. 268, 279. This consideration loses none of its force in determining the principle to be adopted merely because the landlords happened to have made an improvident bargain with the respondent in the particular case, — a matter with which the petitioners had nothing to do.
An exception was taken to the refusal of a ruling that the petitioners were entitled to recover of the respondent a sum to compensate them for injury to their business, the loss of the earnings and profits, for the period that the business was temporarily suspended or interrupted by removing from their old place to another location. The judge was right. It appears from
The last exception argued was to a refusal to rule that the petitioners were entitled to recover “ for the loss of the tenant fixtures which were taken from them, together with damages for any depreciation in those . . . which they were able to remove.” All that is necessary to add with regard to this is that by the statute the respondent had to allow the petitioners three months for removing after taking the land. St. 1896, c. 516, § 24. That took them to April 5. Any damage caused by having to leave on that date rather than on May 1 the judge allowed the jury to give. That was as favorable an instruction as the petitioners were entitled to ask.
Exceptions overruled.
