Shaw v. Appleton, 161 Mass. 313

Shaw v. Appleton

161 Mass. 313 | Mass. | 1894

Barker, J.

In support of his contention that the clause is void whereby the lessor “reserves to himself the right at any time to sell and convey any or all of the land herein deznised, and upon any such sale or conveyance so much of said lazzd as shall be so sold or conveyed shall cease to be a part of the herein demised premises,” the plaintiff uz’ges that a reservation is void which is repugnant to the words by which the estate demised is defined and limited. But, as held izi Cutler v. Tufts, 3 Pick. 272, 276, the rule invoked is a technical one, which may force a construction different from the intent of the parties, and therefore not to be acted upon but in the last resort, and there is no occasion to resort to it in the *315present case. It is clear from the whole lease that the contract was not that the lessee was at all events to hold for two years the land demised, but that his right in so much as should be sold during the term should cease upon such sale. Such bargains are ■common, and clauses inserted to express them have often been given effect. See Munigle v. Boston, 3 Allen, 230, 232; O'Connor v. Daily, 109 Mass. 235. In Pynchon v. Stearns, 11 Met. 304, relied upon by the plaintiff as governing the case at bar, the reservation which the demandant contended was repugnant to the habendum of his lease, was not held void, but was so construed as to amount to a valid covenant, permitting the lessor to enter and erect houses on the demised land. Any provision stipulating that during the term a lessor may enter or may terminate the lease is, in a sense, repugnant to words demising land for a fixed term; but such stipulations are found in most leases, and are not held void because repugnant to the words of demise. See Hunnewell v. Bangs, ante, 132. When, as in the present case, it is clear that the contract was that the lessee should take his estate subject to a defeasance by a sale of the demised property by the lessor, to hold the clause defining the reserved right of the lessor void because repugnant to the demise would be unwarrantably to defeat an intention which the parties have clearly expressed. It follows that the plaintiff’s bill was bad, for the fourth reason assigned in the demurrer, and that it must be dismissed. Bill dismissed, with costs.