154 Mass. 432 | Mass. | 1891
This is an action of contract, to recover money paid by the plaintiff as part of the price of land in Cottage City, under a bond for a deed from Chloe A. Berry, and money expended upon the estate while the plaintiff was in occupation under the bond, and for taxes. The action was brought on June 22, 1886, and the bond is dated October 30,1882. Chloe A. Berry died testate in August, 1883, never having had a child born alive by her husband, Zebina E. Berry, who, on April 21, 1884, was appointed special administrator of her estate. On September 25, 1884, Charles F. Allen was appointed executor of her will, and he dying, the defendant was appointed administrator de bonis non on December 1, 1884. Upon the execution of the bond, the plaintiff paid $1,000 as part of the purchase money, and gave three notes for $3,000, the balance, each note being for $1,000, payable in one, two, and three years respectively. She occupied the place during the Cottage City seasons of 1883 and 1884, paying the taxes of 1883, and early in 1883 made repairs or improvements, as she now claims, at the request of Mrs. Berry.
In the latter part of 1884 she expressed, in a letter dated November 23,1884, her intention to give up the property, contending that the title was defective, and surrendered the keys, or some of them, to the defendant’s agent. In the spring of 1885 she had a personal interview with the defendant, at which she
When the case was before us upon a former bill of exceptions, (Linton v. Allen, 147 Mass. 231,) it was held that the agreement was “ that Mrs. Berry should sell the land to the plaintiff for $4,000, —$1,000 to be paid down, and $1,000 within one year, $1,000 within two, and $1,000 within three years,— for which she was to give notes payable at three different dates, but with the privilege of anticipating payments, and that possession should be given on March 1, 1883, and the deed should be given upon the payment of the notes. The bond was given upon the payment of the $1,000, and the delivery of the notes to secure the performance of the agreement by Mrs. Berry.” It was further held, upon a review of the authorities, that “ such a contract would not be performed by Mrs. Berry by tendering a deed which did not convey the title to the land; and her inability and refusal to give a good title would excuse the plaintiff from performing the conditions on her part to be performed, and entitle her to recover back the money paid; . . . that the plaintiff was not entitled to demand a deed of the property until she had paid or was ready to pay her notes in full; that she was entitled to claim a good title to the property and not a properly executed warranty deed only.”
After this decision, at the second trial, the presiding justice, against the defendant’s objection, submitted to the jury three questions, which, with the answers of the jury, were:
“ 1. Was the contract rescinded by the mutual consent of the parties after said Allen became administrator ? ” “ Yes.”
“ 2. Was the contract abandoned by mutual consent of the parties after said Allen became administrator, leaving the parties in the state in which they were at the time of such abandonment ? ” “ No.”
“ 3. Was the plaintiff ready and willing to perform her part of the contract, and did she notify the defendant, and request the performance of his part, and did the other party refuse or neglect to perform the contract ? ” “ Yes.”
The presiding justice ruled that Mrs. Berry had never been in a condition to give the plaintiff a good title, owing to the restrictions and conditions in her deed, and the evidence as to
We consider only the exceptions which have been argued.
1. If the presiding justice was right in submitting the case to the jury, he clearly might ask them to answer the three questions. Both rescission and abandonment were in issue at the trial. Ho- reason is urged why the submission of these questions was prejudicial to the interests of the defendant, and none appears to us. The exception to their submission is overruled..
2. It will be convenient to examine early the correctness of the ruling, that Mrs. Berry was not in a condition to give a good title on account of the conditions and restrictions contained in her deed. That deed contained, after the description, the following clause : “ The cottage not to be erected nearer the avenue than five feet, and five feet from the adjoining lots.” Then followed, among other conditions, — a breach of any one of which, it was provided, should work a forfeiture of the estate, and reinvest it in the grantor,—a condition that the grantee should within one year cause to be erected on the granted premises “ a dwelling-house, to be used exclusively as a residence for a private family.” The habendum is to the grantee, and her heirs and assigns, “ so long as he and they shall well and truly keep and perform the conditions hereinbefore contained.” The covenants are of seisin in fee, freedom “ from all incumbrances, except as herein set forth,” of good right to sell and convey, and that the grantor “ will warrant and defend the same to the said Chloe E. Berry, her heirs and assigns forever.” The bill of exceptions states that the evidence showed that the house upon the lot had been used by Mrs. Berry as a boarding and lodging house, and had been let by her in 1882 for that purpose; it also appears that the uncontradicted evidence tended to show that after the erection of the house on lot 135, and the purchase of the adjoining half of lot 137 by her, an addition was made to
In support of his exceptions to the refusal to give these rulings, and to the instruction given, the defendant argues that the conditions were by the deed itself made unenforceable by the only party who could take advantage of them, the grantor and those claiming under him being estopped by the general covenant of warranty from making any claim upon the property, and cites the cases of White v. Patten, 24 Pick. 324, and Estabrook v. Smith, 6 Gray, 572. The latter case states only the familiar doctrine, that if one who has no title conveys with warranty, and afterwards acquires title and conveys to another, the second grantee is estopped from claiming that his grantor was not seised at the time of the first deed. In Estabrook v. Smith, the defendant had conveyed to the plaintiff lands subject to a mortgage, and had excepted the mortgage in his covenant against incumbrances, but had made a general covenant to warrant and defend against the lawful claims and demands of all persons ; and the case holds that the mortgage was not excepted from the covenant of warranty. The ground stated for holding that the covenant of warranty was not restricted nor limited by the restricted covenant against incumbrances was, that the two were not connected covenants of the same import and directed to one and the same object, and that the grantor might well covenant to warrant against the eviction of his grantee by the holder of the mortgage, though he could not covenant against all incumbrances without rendering himself forthwith liable to an
3. The presiding justice was right in refusing to order a verdict for the defendant. At this trial there was evidence tending to show the giving. of the bond, the payment of the one thousand dollars by the plaintiff, and an uncured defect in the obligor’s title; also that the plaintiff had been ready and willing to complete the payment for the property and accept a deed which should convey to her a good title, and that she had caused statements to be made to that effect to Mrs. Berry, and after her death to those in charge of her estate. There was undisputed evidence that no such deed had been tendered to her, and that no deed conveying a title free from the defect could have been made by Mrs. Berry or her representatives or devisees. There was also evidence tending to show that before bringing suit she had given up the possession of the estate, and tried to procure a settlement with the defendant, contending that she had not been able to get a good title to the property, and was entitled to something from Mrs. Berry’s estate. But there was no evidence or claim that she had made an actual tender of the amount due upon her notes.
4. The same considerations govern the question raised by the exception to the refusal to rule “ that if neither the defendant or Mrs. Berry, or Mr. Berry as special administrator, or Mr. C. F. Allen as executor, refused to give the plaintiff a good title, and did not do any act which would make the conveyance of a good title impossible, the plaintiff, in order to recover on the count on the bond, must show a tender of payment of the notes.”
5. The ruling requested, “ that if Mrs. Berry and all those who represented her estate were always ready and willing to give the plaintiff a good title, upon the performance by her of all that she was required to do, and did not refuse so to do, and did not put it out of their power so to do, the plaintiff cannot recover,” was also properly refused, because there was no evidence that Mrs. Berry or any of her representatives were ever in a condition to convey a good title, without which they could not be ready, in a legal sense, to give the plaintiff such a title.
6. The request to rule “ that the fact that incumbrances existed on the title of the property did not of itself excuse the
7. The remaining exceptions to the refusal of instructions relate to the following requests:
“ That a demand for the deed and offer to pay the amount due on the notes, to be effective for the purpose of this action, must have been made either upon Mrs. Berry, Mr. O. F. Allen as executor, or upon this defendant.”
“ That a demand on Mr. Berry, as special administrator or as husband of Mrs. Berry, if any were made, for a deed or title, does not affect the defendant in this action.”
“ That no legal demand for a deed could be made of Mr. Berry, either as special administrator or personally.”
“ That all communication with the defendant happening after the letter of November 23, 1884, is not material on the question of the plaintiff’s readiness to perform her part of the contract, or her offer to do so.”
It would be sufficient to require us to overrule these exceptions, that, while the. defendant’s bill shows that they were requested and not given, it fails to show either that no instructions were given on the points embraced in the requests, or that correct instructions upon those points were not given. Its statement of the charge is introduced by saying, “ The judge charged the jury, among other things, as follows.” Under these circumstances it is to be presumed that instructions not stated were given upon the matter to which the requests relate, and that the3>' were correct. We do not, however, overrule these exceptions upon this ground only. The first three are based upon the theory that no demand or offer made on or to Mr. Berry could be material. But Mr. Berry in the lifetime of his wife acted as her agent, after her death was for a time the special administrator of her estate, and is the residuary legatee under her will. The exceptions do not state sufficient facts to enable us to see that no demand upon or offer to him could have been material, and the inference that the contrary doctrine was cor
8. The defendant further contends that the plaintiff can maintain no action for money expended on the repair of the property, or for the taxes paid, because of her failure to perform the conditions of her contract, and he argues that the plaintiff cannot recover for repairs or taxes, for the same reason that she cannot recover for payments of purchase money. This reason fails, because the jury has in effect found that there was no failure on the plaintiff’s part to perform her agreement. We see no error in this part of the case.
9. The first exception which the defendant argues to the admission of evidence relates to the admission of paroi evidence of the contents of a letter which one Smith, called as a witness by the plaintiff, testified that he wrote to Mrs. Berry after he had received a certain letter written by her husband at her request on January 7, 1883. Smith was a real estate agent, who had acted for both the plaintiff and Mrs. Berry. He had negotiated the sale to the plaintiff, and drawn the bond for a deed. He had testified that the plaintiff came to him and wanted to know if she could make repairs, and that, in consequence, he wrote to Mrs. Berry that the plaintiff wanted a title to the property. The defendant’s counsel then produced a letter from the witness to Mrs. Berry, dated February 20, 1883, and stated that it was the only letter in his possession. The witness then stated, without objection, the contents of the letter to which he had first testified, and was asked whether he wrote more than one letter to Mrs. Berry, and testified that he did. The plaintiff then introduced a letter to the witness, dated January 7, 1883, written by Mr. Berry at his wife’s request, acknowledging the receipt of a letter from the witness on the night before, and saying, “ She says go ahead and make the improvements contemplated, and she will make it all right,” etc. The witness
10. Upon cross-examination the same witness was asked if, at the time of the execution of the bond, he said anything to Mrs. Berry about conditions\ and the defendant excepted to the exclusion of the question. He now argues that it was a proper one, because the plaintiff was present at the time, and that conversation in the presence of the parties was competent to show that at the time the plaintiff knew of the conditions on the property. The exception must be overruled. It is not stated in the bill of exceptions that the plaintiff was present, and no mention of that claim was made when the question was excluded. Whether the plaintiff knew of the conditions when the bond was given was immaterial.
We think the evidence was competent, as characterizing the acts of payment which they accompanied, and also as tending to show a readiness on her part to perform her own agreement upon a condition upon which she had a right to insist, that is, upon the conveyance to her of a good title. The substance of the conversations was merely that, upon his demand for the payment of the notes, she hesitated, and declared her unwillingness to pay out more money without a good title, and that she would like to pay if he would give her a good title, and, finally, that she would pay no more until she got a title. The exception to its admission must, therefore, be overruled.
Upon the whole case the result is, that, no error appearing upon the consideration of such of the defendant’s exceptions as he has chosen to argue, the exceptions must be overruled, and there must be,
Judgment for the plaintiff on the verdict.