210 Mass. 396 | Mass. | 1912
The plaintiff’s title to the buildings rests upon the construction of the deed under which the city acquired the freehold. Noble v. Bosworth, 19 Pick. 314. Miller v. Washburn, 117 Mass. 371. By the unambiguous language of the grant “ certain lots or parcels of land ” are conveyed, and under the terms of this description the estate included the buildings. First Parish in Sudbury v. Jones, 8 Cush. 184, 189. If the subsequent clause immediately preceding the habendum, “ all buildings to be removed from these premises on or before July 1st next by the grantor or his assigns,” leaves no doubt of the intention of the parties, that they were to belong to the plaintiff, yet until severed they would not become his personal property. But if for the purpose of severance the right of entry and removal are implied, it is also plain, that unless the right was exercised within the period the soil and buildings were to remain united. Washington Mills Emery Manuf. Co. v. Weymouth & Braintree Mutual Fire Ins. Co. 135 Mass. 503. Poor v. Oakman, 104 Mass. 309. Perkins v. Stockwell, 131 Mass. 529. Barry v. Woodbury, 205 Mass. 592. The plaintiff’s separate property in the buildings as chattels, depended therefore upon compliance with the condition.
It is specifically averred in the answer, and appeared in the report, that the plaintiff failed to effect a severance before the date of termination, and while the parties by agreement could have extended the time, the interviews or negotiations which the plaintiff had with its various municipal officers did not operate as an extension binding upon the defendant. St. 1847, c. 60,
The plaintiff invokes the rule, that equity will relieve against a forfeiture, and that on this ground alone the bill can be maintained. But the parties dealt on an equal footing, and the plaintiff was the grantor. It may be inferred from his evidence that he intended to preserve and to remove them to another location, and not to demolish them, and take away the materials. The length of time, however, which might be required, and their value if preserved, were important factors which he must be presumed to have considered in making the sale, and it was within his power by an appropriate stipulation to have guarded against the consequences of a default, if the period reserved should prove to be insufficient. John Soley & Sons v. Jones, 208 Mass. 561, 566. The nature of the contract having expressly made the time of performance essential, and his right to the property dependent upon it, the plaintiff shows ■ no equitable circumstances of accident or mistake under which relief should be given. Mactier v. Osborn, 146 Mass. 399, 402. Baltimore City Bank v. Smith, 3 G. & J. 265. Brown v. Vandergrift, 80 Penn. St. 142. Wells v. Smith, 2 Edw. Ch. 78. Baxter v. Lansing, 7 Paige, 350. Klein v. New York Life Ins. Co. 104 U. S. 88. Davis v. Thomas, 1 Russ. & M. 506.
If the right of separation had been exercised seasonably, although the removal had been accidentally postponed beyond the limitation, the question argued by the plaintiff, whether, compensation to the defendant in damages being practicable, equitable relief should be granted, would have been presented. Claflin v. Carpenter, 4 Met. 580, 582, 583. Gates v. Johnston Lumber Co. 172 Mass. 495. Henry v. Tupper, 29 Vt. 358. It is not open on the record and the result is, that under the reservation in the report, the bill must be dismissed with costs.
Decree accordingly.
