Hill v. Levine, 147 N.E. 837

Hill v. Levine

147 N.E. 837

Mass.

1925

Check Treatment

Sanderson, J.

Thе plaintiff brings this bill in equity for specific performance of an agreement in writing to sell to the defendant two parcels of land, situаted in Boston, consisting of five and two lots respectively. By the terms of the agreement the plaintiff was bound to deliver to the defendant a deed conveying a good and clear title free from all encumbrances. The plaintiff acquired title in 1898 by deed of three grantors, acting as trustees, in which the lots in question were described by metes and bounds and by reference to a plan. - At the end of the description appears the provision that “The premises are conveyed subject to *515the following restrictions which are to remain in force for a period of twenty years from August 20th, 1896.” This is followed by stipulations as to the kind of buildings to be erected оn the lots, their cost, location, and certain prohibited uses. Then follow, in separate paragraphs, the provisions: "Thе rest of the land shown on said plan is to be conveyed subject to the same restrictions”; and "The grantee may re-divide said land into lots but no lot shall have a frontage of less than fifty feet.”

The question to be decided is whether the words last quoted raise such doubt about the plaintiff’s ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍title that the defendant should not be required to perform specifically his agreement to buy.

It is the contention of the plaintiff that the restriction relating to the fifty foot frontage expired by the terms of the deed on August 20,1916; while the defendant contends that this restriction is not so limited and will not expire until March 19, 1928 (G. L. c. 184, § 23), or at least that there is so much doubt about the title that a decreе for specific performance should not be entered.

It appeared that at the date of the deed the plaintiff’s grantors, as trustees, owned a large tract of land in the Dorchester district of Boston, which they had caused to be divided into lots, as shown on a recorded plan. Most of these lots had a frontage of more than fifty feet. The conveyance to the plaintiff was one of the first which they made and the first which contained two or more adjoining parcels on the same street. None of the subsequent conveyances, one of which was a mortgage of several lots, contained any provision that the lоts should have a frontage of not less than fifty feet. In 1904 by a decree of the Land Court, the title to the remaining lots owned by the trustees was registered. This decree contained no reference to any requirement that they have a frontage of fifty feet. Both thе mortgage and decree contained building restrictions substantially like those in the deed to the plaintiff. The trust has now been dissolved by decree of the Supreme Judicial Court. There is nothing in the terms of the deed or in the surrounding circumstances to suggest that the provision giving the grantee *516the right to redivide the land into lots with a frontage of not less than ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍fifty feet was a part of a scheme or plan fоr the benefit of other lots. Dana v. Wentworth, 111 Mass. 291. Tobey v. Moore, 130 Mass. 448, 451.

So far as the terms of the deed are concerned, the contention that the limitation of time wаs not intended to apply to the frontage restriction is based on the fact that it is in a separate paragraph following the agreement to include the earlier group of restrictions in future conveyances. This separation clearly indicаtes that the provision as to width of the lots was not to be mentioned in future conveyances. The statement in regard to future conveyances was in the nature of a parenthetical clause inserted to make the distinction clear between what wаs and what was not to be included in future deeds, and it was not intended to exclude the frontage restriction from the limitation period. The words “following restrictions” mean all that follow, including that relating to frontage. The arrangement of the paragraphs does nоt becloud the title or throw doubt on the manifest meaning of the deed. Welsh, petitioner, 175 Mass. 68. Best v. Nagle, 182 Mass. 495.

It is contended that the defendant might be exposed to litigatiоn to defend his title if he owned the property and that a decision in this case would not be conclusive if other lot owners should rаise the question whether the frontage restriction is still in force. The provision as to frontage is in terms a personal agreemеnt between the grantors and the grantee, and the fact that it was not in the group of restrictions to be included in other deeds tends tо show that it was not intended for the benefit of other lot owners. This conclusion is confirmed by the fact that it was not mentioned in any subsequеnt deed. Badger v. Boardman, 16 Gray, 559. Tobey v. Moore, supra. It is not stated in any form of words that this restriction as ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to frontage was imposed for the benefit of adjacent land. Lowell Institution for Savings v. Lowell, 153 Mass. 530. Unless it appears that a right or privilege is reserved for the benefit of the remaining lots of a grantor, in the deed itself or from a plan or from the situation of the property with reference to other land of the *517grantor, the grantees of other lots cannot enforce them. Badger v. Boardman, supra. Jewell v. Lee, 14 Allen, 145. Skinner v. Shepard, 130 Mass. 180. Beals v. Case, 138 Mass. 138. Bessey v. Ollman, 242 Mass. 89. Allen v. Massachusetts Bonding & Ins. Co. 248 Mass. 378, 383. The conclusion follows, from a consideratiоn of all the facts, that the provision in the deed as to frontage of the plaintiff’s lots did not create an equitable easement appurtenant to his remaining lots.

In cases in which a defendant has been held not bound to accept title, facts have appeared showing that the property was or might be subject ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to adverse claims such as might reasonably be expected to expose the purchaser to controversy in order to maintain his title. First African Methodist Episcopal Society v. Brown, 147 Mass. 296. In the case under consideration there is no reasonable ground for litigation by owners of other lots and such arguments as they might make have been addressed to the court by thе defendant. The case is one of the legal construction of a deed, with no controverted question of fact to be dеtermined. Chesman v. Cummings, 142 Mass. 65. The mere possibility that a claimant may hereafter appear and ask the court to overturn a well settled rule of law is not such a defect or doubt as ought to lead a court in its discretion to deny the plaintiff the right in equity to specific pеrformance. Dow v. Whitney, 147 Mass. 1. A decision of this court is res judicata only as to the parties before it; ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍as to others it is authority. Hunting v. Damon, 160 Mass. 441. But this does not prevent the court from ordering specific performance where the question is one of construing a written instrument and there can be no reasonable doubt about its construction. Hayes v. Harmony Grove Cemetery, 108 Mass. 400. Dow v. Whitney, supra. First African Methodist Episcopal Society v. Brown, supra. Cushing v. Spaulding, 164 Mass. 287.

The decree is to be reversed, and a decree for specific performance entered with the right on the part of the plaintiff to apply to the Superior Court for the assessment of damages in accordance with the prayer in his bill.

So ordered.