184 Mass. 68 | Mass. | 1903
The agreement of October 14,1899, between Pillsbury and the plaintiff was something more than an agreement upon the part of Pillsbury to sell and on that of the plaintiff to buy the land over which this controversy has arisen. Although it is carelessly drawn, yet so far as material to this case its provisions are sufficiently clear.
After describing the land and stating the amount to be paid and the time and manner in which the deed is to be delivered, it is provided that Pillsbury, the party of the first part, shall not suffer any waste or use of the said estate or receive any benefit therefrom, nor cut any wood therefrom except he first obtains consent in writing from the party of the second part,-and the former agrees also to give the latter the “use and benefits, profits, income and general rights in said estate.” It is also agreed that the former shall “not lease, nor rent, nor sell the estate nor any part thereof . . . unless with the consent ” of the latter. It is also expressly provided that the agreement shall be binding upon the heirs, executors, administrators or
It is contended by the defendant that there was no intention to create in the plaintiff any term in the land, that there was simply a promise on the part of Pillsbury to convey a fee upon the happening of certain conditions, that until the time came for the delivery of the deed the agreement seems to contemplate that he may be in possession, and that, inasmuch as he holds the title and possession, the relation between him and the plaintiff was that of trustee and cestui que trust, with an option of purchase by the latter.
But for reasons stated above we think that this is an agreement for sale, together with an agreement for fixing the rights of the parties as to the possession during the continuance of the agreement; that in language sufficiently clear and precise the right of possession is given to the plaintiff. It is given to her by a sealed instrument and is a legal right. It is not simply an executory promise to give possession, but it is a present grant to the plaintiff of the possession, to continue during the existence of the agreement. The right given is not an estate at will, but a much greater estate, and until it is lost by the default of the plaintiff, or by the expiration or annulment of the agreement by lapse of reasonable time or otherwise, she will continue to hold it. It is stated by the judge before whom the case was tried that no time was specified within which the agreement was to be performed, and his finding for the plaintiff involves a finding that, notwithstanding Pillsbury’s conduct as set forth in the bill of exceptions, the agreement was still in force at the date of the writ.
Since the relation of landlord and tenant existed, and since the rights acquired by the plaintiff under the agreement of October 14, 1899, are not shown to have been terminated, the title of Pillsbury to the possession does not seem to be superior to that of the plaintiff, and therefore, even if attornment to the possessor of a paramount title or proof of the expiration of the landlord’s title since the lease was given would be a defence to an action of this kind, the facts fail to prove such a defence.
Exceptions overruled.