223 Mass. 556 | Mass. | 1916
This is a bill in equity brought to enforce certain
restrictions upon the use of the defendant’s land. The case was reserved by a judge of the Superior Court
The evidence shows, that in 1847 the owners of a large tract of land in Cambridge caused it to be surveyed, divided into lots, and a plan thereof prepared, which was filed in the registry of deeds and is referred to as Plan 15.
It appears that in the conveyance to Randall, the defendant’s predecessor in title, and in all subsequent deeds in the chain of title, including the deed to the defendant, no restrictions were imposed. There is nothing upon the plan which purports to restrict any of the lots shown thereon. In other words, there was nothing on the record in the registry of deeds to charge the defendant with notice that the lot, purchased by him, was subject to any restrictions whatever. Upon these facts, the defendant’s lot cannot be held to be subject to any restrictions for the benefit of the lots owned by the plaintiff. Beals v. Case, 138 Mass. 138. McCusker v. Goode, 185 Mass. 607. Roak v. Davis, 194 Mass. 481. Sprague v. Kimball, 213 Mass. 380. It is well settled that an easement in the nature of an equitable restriction cannot be imposed upon, land by paroi. R. L. c. 127, § 3. Sprague v. Kimball, supra.
The plaintiff contends that the recital in a mortgage given by the defendant’s predecessor in title, Randall, on November 5,, 1850, while he was the owner of the rear portion of lot No. 3, is-an acknowledgment by Randall of the existence of the restrictions, and “is sufficient not only to establish that he agreed to-these restrictions when he purchased this lot, but that the omission of the same from his deed was due to accident or mistake,” and that the principles stated in Sprague v. Kimball, supra, do not apply. If the deed to Randall omitted to refer to the restrictions and such omission was due to accident and mutual mistake,, the remedy of the grantors or those claiming under them is by a-bill to reform the deed, and cannot be considered in this proceeding. The Randall mortgage did not include the portion of lot. No. 3 owned by the defendant, but covered only the rear part of that lot. The recital is as follows: "subject to those convenient, restrictions heretofore imposed upon said land by deed of G. G. Hubbard et al., under whom I claim as by reference to the record thereof at said Registry will appear.” Aside from the fact that the mortgage did not cover the part of lot No. 3 owned by the defendant, the recital was of a fact which never existed. Apparently Randall believed that the lot was subject to the restrictions, but it is plain that he was mistaken. No owner of the lot in ques
It is unnecessary to consider whether the statute of frauds would be a bar to the relief which the plaintiff seeks.
As the suit cannot be maintained, the entry must be
Bill dismissed.
Jenney, J.
The description of this plan in the opinion gives all the information concerning it that is material.