289 Mass. 140 | Mass. | 1935
On July 31, 1923, a written agreement was made under which the defendant Lafleche conveyed real
On November 22, 1923, before any petition to register title was filed, Lafleche agreed in writing to convey the Morris Street real estate to the plaintiff, subject to a mortgage for $3,200, which was not mentioned in the earlier agreement, for $7,500 in cash, of which $1,000 was paid as a deposit. The plaintiff took possession, expecting the title to be cleared, and apparently still holds possession. The matter dragged along until 1926, when engineers determined that the buildings maintained by Beauregard upon the land encroached to a considerable extent upon the land of a neighbor. Nothing was done by Beauregard or Lafleche to clear the title. On November 10, 1931, the plaintiff, having paid the entire consideration except $1,000, wrote to Lafleche that he was ready to pay the balance, and demanded his deed. Both Beauregard and Lafleche are unable to convey the “good and clear title” required by their several agreements, if their agreements required conveyance of the buildings and the land under them. Rubenstein v. Hershorn, 259 Mass. 288, 294. Queenin v. Blank, 268 Mass. 432.
On September 14, 1932, the plaintiff sued Lafleche for specific performance. Lafleche by counterclaim brought Beauregard in as a party. Rule 32 of the Superior Court (1932). Beauregard answered, in substance, that he has always been ready to convey the real estate to Lafleche in accordance with his written agreement, but “no time nor place was mentioned in said written agreement . . . for the transfer of the title . . . and said agreement is void as against your defendant,” Beauregard. Beauregard set up also the adequacy of the remedy at law, and loches.
Both defendants, Lafleche and Beauregard, brought in objections to the master’s reports. Their exceptions to the
Beauregard agreed to pay for the land conveyed to him by Lafleche, in part by “the transfer [to Lafleche] of the property belonging to Irene R. Beauregard at No. 3 Morris Street, Southbridge, Massachusetts.” In Harvey v. Sandwich, 256 Mass. 379, 384, it is said, “The grant of a 'house/ 'barn/ or 'mill/ or 'cottage/ or 'wharf/ is a familiar instance of the use of such terms, and the conveyance in such a form passes by implication and comprehends the land under the structure and the land adjacent thereto so far as necessary to its use and commonly used with it.” See also Mead v. Parker, 115 Mass. 413; Snider v. Deban, 249 Mass. 59, 61; Hirsch v. Fisher, 278 Mass. 492, 495; Sullivan v. Donohoe, 287 Mass. 265, 267. In determining what land is included, the fact that the grantor does not own a certain strip has been given force as indicating that it was not to be conveyed. Schon v. Odd Fellows Building Association, 255 Mass. 465. “The words of description in a deed are intended to refer to an estate owned by the grantor, and this is also the presumption in construing a contract for a future conveyance.” Danforth v. Chandler, 237 Mass. 518, 521. In the present case the word used was “property” and not “house” or “buildings.” But the master finds that the word “property” was intended to include the buildings. The words, “belonging to” Beauregard, were descriptive of the property at No. 3 Morris. Street, and did not amount to an acceptance by Lafleche of whatever interest Beauregard might happen to have in that property. Tobin v. Larkin, 183 Mass. 389, 391. It is not to be supposed that the “property” on which there were “buildings” was restricted to the boundaries of Beauregard’s ownership, where the buildings extended beyond. The circumstances showed that the description included at least all the' land covered by the buildings. Rubenstein
The plaintiff brought the bill in apparent good faith, in the hope of obtaining specific performance. Both defendants asserted their willingness to perform, and sought during the hearings to perform their agreements by giving warranty deeds; but the master found that their proposed deeds would have conveyed no marketable title to the whole lot which they had agreed to convey. Under these circumstances the point of the adequacy of the legal remedy, raised seasonably by the defendant Beauregard alone, did not prevent the award of damages. Peerless Unit Ventilation Co. Inc. v. D’Amore Construction Co. 283 Mass. 121, 125, 126. Carleton & Hovey Co. v. Burns, 285 Mass. 479, 486. No loches is shown. The defendants do not complain of the computation of damages. Although the plaintiff moved to confirm the master’s reports, and brought in no objections, he appealed from the decree confirming the master’s reports, apparently because an item of $611.92 for managing the property, allowed him by the master, was excepted when the rest of the reports was confirmed. The plaintiff also appealed from the final decree, apparently for the same reason. This item was allowed the plaintiff as a deduction from rents collected by him and credited to the defendant Lafleche in what was substantially rescission, and amounted to five per cent of the rents collected. We think that this item should have been allowed, in order to make the plaintiff whole. See Davidson v. Zieman, 283 Mass. 492, 495.
The interlocutory decree is modified by the allowance to the plaintiff of the item of $611.92, and as modified is affirmed. The final decree is modified likewise by the addition of that sum to the amount payable to the plaintiff, and as modified is affirmed, with costs against each defendant in-favor of the party to whom such defendant is ordered .to
Ordered accordingly.