4 Mass. 427 | Mass. | 1808
The plaintiff demurs to both these pleas in bar, and the defendants join in demurrer; and the parties submitting the cause without argument to the Court, their opinion was afterwards delivered as follows by
It appears, from the first plea, that Obadiah Williams died seised of the land mentioned in the condition of the bond; that the defendants, having obtained license to sell the same for the payment of the deceased’s debts, they accordingly sold it at public auction to one Perkins, the highest bidder; that the plaintiff was present at the sale, and that he requested that the land might be sold at auction. These facts are pleaded in bar, to which títere is demurrer and rejoinder. And it is very clear that this bar is bad. It is not a performance of the condition, nor is it any legal excuse for not performing it. The plaintiff could not obtain a legal title, but by a sale at auction, in which he was the highest bidder, ot some other person, from whom he might afterwards purchase. I'
The second plea in bar alleges that, before the execution of the bond, the whole land was legally covered by a highway laid out by the selectmen, and approved by the town. To this plea also there is a demurrer and joinder. This second plea is also bad. The soil and freehold still remained in the former owner, f *429 ] notwithstanding the encumbrance of the* road ; and the obligors ought to have executed the conveyance, subject to that encumbrance.
In hearing the parties in equity, the defendants may avail themselves of the location of the road, to reduce the damages arising from the breach of the condition ; but that location cannot be pleaded as a performance to the condition, or as a legal excuse for not performing it.
The penalty of the bond must be considered as forfeited at law, and the defendants may be heard in equity.
