268 Mass. 116 | Mass. | 1929
The plaintiff and defendant on May 28, 1926, signed a contract under seal for the sale by the defendant Robert W. Shannon and purchase by the plaintiff of certain premises, which were to be conveyed, upon the cancellation of all outstanding leases covering the property, “by a good and sufficient deed . . . conveying a good and clear title . . . free from all encumbrances. Said leases are to be can-celled and the property free from all tenants at the time of passing papers which is to be on or before December 1, 1926.” The agreement provided further “If . . . [Shannon] shall be unable to give title or to make conveyance as above' stipulated, any payments made under this agreement shall be refunded, and all other obligations of either party hereunto shall cease, but the acceptance of a deed and possession by . . . [J. J. Newberry Company] shall be deemed to be a full performance and discharge hereof.” On May 28, 1926, Shannon was unmarried; and the premises were encumbered by an attachment for $300 and by a lease to one Jacobson expiring by limitation January 4, 1931, which, however, contained a provision that in the event of a sale the lessee would cancel the lease on payment of $1,000, the lessor giving six months’ notice in writing of the sale. Shannon gave due notice to the lessee, the six months to expire December 1, 1926.
In June, 1926, a second attachment in $7,000, was placed upon the property without fault or collusion on the part of
It was decided in Old Colony Trust Co. v. Chauncey, 214 Mass. 271, that such a contract is not an unqualified contract to convey, and that if without fault of the vendor subsequent to its execution the title was defective at the time set for conveyance, then on refunding any amount which had been paid, the contract would be at an end. In Buckley v. Meer, 251 Mass. 23, it was held that an attachment made subsequent to the agreement without fault or collusion of the vendor rendered him unable to make the conveyance and would terminate his obligation to go on with the contract. To the same effect is Drapen v. Foley, 258 Mass. 167. The defendant thus rightfully could have returned the $2,000, already paid by the plaintiff, and have declared the contract to be at an end, if he had so desired. At a conference, it was agreed that Shannon would dissolve the attachment and go on with the proceedings against Jacobson if the time for performance was extended; and the plaintiff extended the time to December 20, 1926. On December 20, Jacobson was still in the premises and the attachment in force. An extension to January 20, 1927, was agreed upon. Further extensions were granted till April 15, 1927. The trial judge found and ruled that the defendant had waived the right to return the payment made and to put an end to the contract. We find no error of law therein. The defendant for consideration agreed to remove the defects in the title. It is not open to him later to set up these defects as a ground for putting an end to the obligations of the contract. See Moskow v. Burke, 255 Mass. 563.
On December 28, 1926, the defendant married. There
The ruling that upon the facts here appearing the wife took no interest wMch affected the rights of the plaintiff was correct. Dooley v. Merrill, supra. Seamon v. Harmon, 192 Mass. 5, 7.
On April 15, 1927, the defendant refused to extend the agreement further. The attachment was then in force, Jacobson was in possession, and, as he then first disclosed and asserted as a ground of incapacity, the defendant had married. A few days before April 26, he tendered back the $2,000; and on April 26, he refused to convey at the price agreed. The plaintiff refused the tender, and on April 28, 1927, filed this bill. The bill was silent in regard to the marriage. It prayed conveyance subject to the pending litigation with Jacobson. Hearing was had June 15, 1927,
For the reasons already stated there is no merit in the appeal of Robert Shannon. Alice F. Shannon contends that she has not been heard and that the decree is invalid as to her. The record contradicts this contention. The requests filed at the hearing of June, 1927, show that the question of the effect of the marriage was presented then, though not decided. The findings of March 30, 1928, show that it was considered. She was made a party July 7, 1928. She filed her answer July 25. The final decree recites that it was made after further hearing. This imports full hearing of what she desired to have heard. Between July and October, 1928, there was abundant time for the introduction of additional evidence if she desired. So far as we can see all material evidence was before the court. She was heard on the final decree. She has no good ground of complaint. Cohen v.
Decree affirmed with costs.