42 Mass. 404 | Mass. | 1840
In an action of trespass quare clausum, the defendants justify on the ground that a town way had been laid out over the close in question, by the selectmen of Shrewsbury, and ratified by a vote of the town, and that the defendants entered, under the direction of the selectmen, for the purpose of making the road. The plaintiff insists, that the proceedings of the selectmen and of the town were irregular, the laying out void, and that the defendants cannot justify under thejn.
The first exception is, that the warrant, for the meeting of the town to act upon the report of the selectmen, was dated and issued before the day on which the selectmen actually laid
The second exception is, that the vote of the town, affirming the act of the selectmen, was conditional; that the town had no authority to annex such conditions ; and that this rendered the vote void.
Upon the mere question, whether the annexing of a condi non to the vot¿ of the town affirming and ratifying the act of she selectmen, renders the vote invalid and the act void, we think Jones v. Andover, 9 Pick. 146, is a decisive authority.
In the present case, all the conditions, except that of paying
But the condition might have some effect. It may be that Daniel Harrington,. 2d, had entered into some agreement to charge himself, or his heirs, or the estate which he held, (an agreement not now considered contrary to public policy,) and that the annexation of the condition was to recognize and accede to that agreement. This was matter between said Harrington and the town, and, we think, did not render void the act and vote of the town, affirming the location made by the selectmen, and establishing the way.
The third exception is, that the conditions were not complied with. We have already stated, that all the conditions were subsequent, and therefore previous compliance with them was not necessary to give effect to the vote, except the payment of damages for land taken ; if, indeed, that is to be considered an exception. It appears by the facts in the present case, that the damages were repeatedly tendered to the party through whose land the road was laid, before the land was entered upon, and that he refused to accept the money. When a duty is to be performed, a condition or forfeiture saved, or a right established, by the payment of money, tender of the money is sufficient. It is not in the power of him who is to pay, to compel the other to receive the money. All he can do is to make a formal and legal tender; and in doing this, rights are saved, whether the other will accept or not.
We think, therefore, that none of the exceptions are well founded.
It was contended for the defendants, that even if there were
Plaintiff nonsuit.