| Mass. | May 25, 1917
The deed to Patrick Kelly, predecessor in title to the petitioner, in 1862 is in form a deed of warranty.' In the premises it is expressed to be the deed of the Waverley Company, a corporation. It contains covenants of seisin, of freedom from incumbrances, and of warranty. It then proceeds as follows: “In witness whereof the Treasurer of said Corporation being duly authorized therefor has hereunto set the Corporate seal and subscribed his name in attestation thereof this Eighteenth day of August in the year of our Lord Eighteen hundred and sixty two.” The instrument was not signed in the name of the corporation or by its treasurer on behalf of the corporation thereunto duly authorized. The mere sealing and delivery of the instrument without signature were not sufficient to transfer title. Gen. Sts. c. 89, § 2. Brinley v. Mann, 2 Cush. 337. See Abbey v. Chase, 6 Cush. 54; Haven v. Adams, 4 Allen, 80; Hutchins v. Brynes, 9 Gray, 367; Murphy v. Welch, 128 Mass. 489" court="Mass." date_filed="1880-03-02" href="https://app.midpage.ai/document/murphy-v-welch-6419919?utm_source=webapp" opinion_id="6419919">128 Mass. 489.
The disseised corporation before entry could convey its right of entry and a title valid as to all the world save as against the person in adverse possession and those claiming under him. McMahan v. Bowe, 114 Mass. 140" court="Mass." date_filed="1873-11-15" href="https://app.midpage.ai/document/mcmahan-v-bowe-6417513?utm_source=webapp" opinion_id="6417513">114 Mass. 140. And before St. 1891, c. 354, it had long been held that a deed of a disseisor to a disseisee in possession was good between the parties without entry. Jackson v. Demont, 9 Johns. 56. Everenden v. Beaumont, 7 Mass. 76" court="Mass." date_filed="1810-10-15" href="https://app.midpage.ai/document/everenden-v-beaumont-6403599?utm_source=webapp" opinion_id="6403599">7 Mass. 76. Bon v.
The petitioner seeks to register title to the land described in the above named deeds, free from restrictions, claiming title by adverse possession. We are of opinion that the title of the predecessor in title of the petitioner was derived from the deed of the Waverley Company and was not that of a disseisor or adverse holder. It follows that the title of the petitioner is subject to the restriction contained in the deed through which he derives his title.
The respondents say that the land is subject to restrictions which were imposed as a part of a general scheme for the development of a residential neighborhood. The Land Court found there was not any general scheme and ruled that, while the petitioner’s lands were subject to the restrictions contained in the deeds to Kelly, the restriction was for the benefit of the Waverley Company only, and ordered a decree for the petitioner accordingly. We think the ruling was right. The Waverley Company before its incorporation in 1855 had divided a large tract of land, now parts of Watertown and Belmont into lots as is shown on a plan recorded in the Middlesex South District Registry of Deeds. In 1853 and 1854 it conveyed seven lots or parts of lots, without restrictions. In 1854 it conveyed a large tract subject to the restriction “That no building shall ever be erected on the aforegranted premises or used except as a dwelling house and buildings appurtenant thereto, or for purposes not offensive to the neighborhood.” Then there were twelve deeds of various lots with restrictions similar to that in the deed of the petitioners. After the incorporation in 1855, the directors, under the authority of the by-laws to execute deeds with such “restrictions as they deem advisable,” conveyed the land sought to be registered to the petitioners; then conveyed lots without restrictions; others with restrictions “against any
As stated in the report the restrictions in the deeds of the lots in the immediate neighborhood of the land now in question varied entirely. The lots of the respondent Hale estate adjoining the petitioner’s land on the east were conveyed in 1854 and 1860 without restrictions. That of the respondent Chandler, immediately adjoining on the north, was conveyed in 1854 subject to the same restrictions as in the Kelly deeds; but the lot immediately on the north of that, was conveyed in 1853 without restrictions. On the opposite corner to the land in question the lots were sold in 1858 and 1860 without restrictions.
The petitioner’s lots are in the southwest corner of a block. At the northeast corner of the same block a lot was conveyed without restrictions; a lot across the street was conveyed subject to a restriction against injurious or offensive use, a lot on the corner diagonally opposite without any restrictions, and a lot on the remaining corner subject to the restriction against “anything but dwelling houses.”
The case falls within decisions like Donahoe v. Turner, 204 Mass. 274" court="Mass." date_filed="1910-01-07" href="https://app.midpage.ai/document/donahoe-v-turner-6430903?utm_source=webapp" opinion_id="6430903">204 Mass. 274, and Webber v. Landrigan, 215 Mass. 221" court="Mass." date_filed="1913-06-17" href="https://app.midpage.ai/document/webber-v-landrigan-6432302?utm_source=webapp" opinion_id="6432302">215 Mass. 221; and is unlike the class of cases of which Hano v. Bigelow, 155 Mass. 341" court="Mass." date_filed="1892-01-07" href="https://app.midpage.ai/document/hano-v-bigelow-6424045?utm_source=webapp" opinion_id="6424045">155 Mass. 341, is the type.
Decree affirmed.