128 Mass. 525 | Mass. | 1880
The plaintiff can maintain this action only by showing a readiness on his part, and a refusal or inability on the part of the defendant, to perform the- contract.
It appeared at the trial that, before the day when the deed was to be delivered, the plaintiff refused to perform the contract on his part. Regarding the evidence in the view most favorable to the plaintiff, he put his refusal upon two grounds. The first was that there was a misdescription of the lot of land in the deed from Jonathan Hunnewell to Thomas Cains, dated June 25, 1817, which formed part of the defendant’s claim of title. There are two answers to this objection. In the deed from Hunnewell, the lot conveyed is described as follows : “ Beginning at the northwesterly corner of Second and B Streets, running southwesterly on Second Street eighty-two feet six inches, then turning and running at right angles one hundred feet on land belonging to Thomas Perkins to a twenty-foot passageway, then turning and running on said passageway eighty-two feet six inches to B Street, then turning and running on said B Street one hundred feet to the point of beginning.” Upon applying this description to the land, it is seen that there is a palpable and self-evident error in the use of the words “ northwesterly ” and “ southwesterly.” It is impossible to begin at the “ northwesterly corner of Second and B Streets,” and run “ southwesterly on Second Street.” If we reject these two words as erroneous, the deed furnishes a description which can be accurately applied to the land. Beginning at the corner of Second and B Streets, we run on Second Street to land of Thomas Perkins, which furnishes a fixed monument; then turning at right angles and running on Perkins’s land to a twenty-foot passageway now called Bolton Street, another monument; then turning and running on Bolton Street to the corner of Bolton and B Streets, a third monument; and then on B Street to the point of beginning. This gives a rectangular lot of land, having Second Street, Perkins’s land, Bolton Street, and B Street for its boundaries. A glance at the plan used at the trial, and made
There is another conclusive answer to this objection of the plaintiff. The deed from Hunnewell to Cains is dated in 1817. It appeared at the trial, and was not disputed, that Cains, whose title the defendant has, then entered into open, exclusive and adverse possession of the land, and continued such possession without interruption until his death in 1865. This clearly gave him a title by prescription, and, in this view, the misdescription is immaterial.
The other ground upon which the plaintiff refused to perform the contract was that there was an incumbrance upon the premises. The plaintiff having made the specific objection to perrorming the contract that there was a misdescription in the deed to Cains, and persisting in this objection, the defendant was not required to go through the useless ceremony of discharging the mortgage and tendering to the plaintiff a deed which he had notified the defendant would not be accepted. Gerrish v. Norris, 9 Cush. 167. Carpenter v. Holcomb, 105 Mass. 280. Curtis v. Aspinwall, 114 Mass. 187.
The only outstanding mortgage was one in favor of Daniel L. Bradford, who testified that he had agreed with the defendant to discharge it at any time upon payment of the amount secured by it. This testimony was competent to show the defendant’s ability to discharge the incumbrance if the plaintiff would waive the objection of the misdescription in the deed. There was sufficient evidence in the case to show the defendant’s ability and readiness to perform the contract on his part.
The plaintiff had the right to go to the jury upon this point, but he waived this right, and agreed that a verdict should be ordered for the defendant, which was to stand, unless this court should be of opinion that, upon the evidence, a verdict should have been rendered for the plaintiff. We are of opinion that
Judgment on the verdict.
