307 Mass. 504 | Mass. | 1940
The parties, at the time of their purchase in 1923 of certain premises in Amherst as tenants in common, entered into an agreement under seal providing for the care, management and sale of the property and containing the following provision: "In the event that either party hereto desires to sell or otherwise dispose of their interest in the said property, then that party shall first offer to sell to the other party, and the other party being unwilling to accept such offer, then the party desiring to sell shall procure a bona fide purchaser, and the other party shall then have thirty days in which to either: a) Accept said purchaser under the same terms and conditions as the parties hereto may be bounden at the time being, b) or purchase themselves at the price said purchaser has agreed upon, c) or offer to sell his share also at the same or lessor [sic] price, in which event the party desiring to sell may, 1) Either buy at that price and sell to another party. 2) Procure a second purchaser for that other’s share. 3) Or have the original purchaser buy both shares.” The petitioner, without complying with the terms of this agreement, filed a petition for partition. The respondent set up the agreement as a bar. The judge ruled that the agreement did not prevent the granting of the petition and entered a decree for partition and sale. The respondent appealed.
The effect of an agreement between tenants in common to hold their land for a certain period has not been recently considered by this court. Black v. Tyler, 1 Pick. 150. Fisher v. Dewerson, 3 Met. 544. Crocker v. Cotting, 170 Mass. 68, 69. This court, like those in other jurisdictions, has upheld and enforced testamentary provisions prohibiting or postponing partition for a reasonable period of time. Gerard v. Buckley, 137 Mass. 475. McLaughlin v. Greene, 198 Mass. 153. Rayhol Co. v. Holland, 110 Conn. 516. Chew v. Sheldon, 214 N. Y. 344. See 85 Am. L. R. 1321. Am. Law Inst. Restatement: Property, § 173.
We assume in favor of the respondent and in accordance with the great weight of authority that a tenant in common may bind himself by agreement from asserting any right to partition, and that such an agreement if extending for only a reasonable time is not contrary to public policy and operates by way of waiver or estoppel to prevent the maintenance of partition proceedings. Smith v. Brasseale, 213 Ala. 387. Rayhol Co. v. Holland, 110 Conn. 516. Hardin v. Wolf, 318 Ill. 48. Friesner v. Friesner, 193 Iowa, 576. Avery v. Payne, 12 Mich. 540. Springer v. Bradley, 188 S. W. 175 (Mo.). Roberts v. Wallace, 100 Minn. 359. Hunt v. Wright, 47 N. H. 396. Spaulding v. Woodward, 53 N. H. 573. Yglesias v. Dewey, 15 Dick. (N. J.) 62. Brown v. Coddington, 72 Hun, 147. Smith v. Smith, 214 App. Div. (N. Y.) 383. Etnier v. Pascoe, 275 Penn. St. 308. Peck v. Cardwell, 2 Beav. 137. LaCoste v. Duchesnay, [1924)] A. C. 166. Freeman (2d ed.) Cotenancy & Partition, § 442. Tiffany (2d ed.) Real Property, § 474.
The agreement was executed at the time the property was purchased, nearly fifteen years before the filing of the present petition. The premises have been occupied by the
Decree affirmed.