Sprague v. Kimball
100 N.E. 622
Mass.
1913
Check Treatment
Braley, J.

The question for decision is whether the provisions of R. L. c. 74, § 1, that a contract for the sale of lands “ or of any interest in or concerning them” must be “in writing and signed by the party to be charged therewith,” requires us to reverse the decree.

The deeds poll from the defendant Kimball, hereafter referred to as the defendant, under which the plaintiffs respectively dеrive title to the second, third, fourth and part of the fifth lot shown on the plan which the defendant caused to .be preрared and recorded, contain this clause, “The premises are conveyed subject to the following restrictions which shall remain in force for twenty years from the date hereof, viz.: — That no building shall be erected or maintained upon the granted premises within twenty-three feet of said Bassett Street, and no stable within fifty feet of said street, provided, however, that steps, bay windows, verandas, cornices and other usual projections may project into said reservеd space; that no public or livery stable shall be maintained thereon; that they shall not be used for any mechanical, manufacturing or mercantile business, nor any trade or occupation offensive to a neighborhood for dwеlling houses only.”

The plaintiffs, even if thus restrained in the use of their own estates, did not gain a corresponding ‍​​​‌‌​​​‌​‌​​​​​​​‌​‌‌​‌​​‌‌‌​​​​‌​​‌​‌‌​​‌‌​​‌‌‍right as against their common grantor in the remaining land exhibited by the plan unless the *382burden of the restrictions was annexed thereto under a contem- , poraneous enforceable agreement. McCusker v. Goode, 185 Mass. 607, 612. Tobey v. Moore, 130 Mass. 448. Dana v. Wentworth, 111 Mass. 291. Whitney v. Union Railway, 11 Gray, 359. Rowell v. Satchell, [1903] 2 Ch. 212.

The lots were sold from time to time as purchasers could be obtained, and more than three years elapsed after the first and before the last conveyance, while apparently seven years intervened between the last conveyance and the defendant’s agreement for the sale of the remainder of lot 5 to the defendant Grossman without restrictions, which the bill seeks to enjoin. The plan incorporated by reference in the deeds, with the exception of the conveyance of lot 2, upon which the defendant before the transfer had built a dwelling in conformity with the building line, contains no reference to the restriсtions, while the deeds are silent as to any express covenant or stipulation on the part of the defendant to the effect that in future sales similar restrictions were to be imposed. But the restrictions upon the mode of ocсupation as expressed in the deeds are uniform, and the judge finds that the defendant intended, and so informed the plaintiffs аt the time of their respective purchases, to subject the lots as they were sold to similar restrictions for their mutual advantage and protection. It is moreover plain from the evidence that each plaintiff was induced by the dеfendant’s promise to-buy and build, being assured that the entire neighborhood would be restricted to residential purposes. It would be a forced conclusion, in view of the general scheme originated by the defendant, as shown by the plan, the deeds and the circumstances under which the plaintiffs severally bought, that the restrictions were intended as the mere resеrvation of personal rights to be enforced for the sole benefit of the defendant or her heirs so long as any рortion of the tract remained unsold. The right invoked by the plaintiffs accordingly attached to each lot as it was grаnted for the mutual benefit of the grantees, although the grantor while he owned the remainder and observed the conditions of the contract of sale, could have compelled in equity a compliance with the restrictions by the lot owners or their successors in title. Jeffries v. Jeffries, 117 Mass. 184. Peck v. Conway, 119 Mass. 546. Sanborn v. Rice, 129 Mass. 387, 396, 397.

It is not a covenant running with ‍​​​‌‌​​​‌​‌​​​​​​​‌​‌‌​‌​​‌‌‌​​​​‌​​‌​‌‌​​‌‌​​‌‌‍the land at law, but it is an *383equitable easement or servitude passing with a conveyance of the premises to subsequent grantees. Parker v. Nightingale, 6 Allen, 341. Ivarson v. Mulvey, 179 Mass. 141. Evans v. Foss, 194 Mass. 513. While only the mode of use is regulated and the fee passed, yet the estate is encumbered with the inherent restrictions which create an equitable, enforceаble interest. Tobey v. Moore, 130 Mass. 448. Hano v. Bigelow, 155 Mass. 341. It is settled by our decisions, that under the R. L. c. 74, § 1, and c. 127, § 3, an equitable as well as a ‍​​​‌‌​​​‌​‌​​​​​​​‌​‌‌​‌​​‌‌‌​​​​‌​​‌​‌‌​​‌‌​​‌‌‍legal interest in land must be evidenced by some sufficient instrument in writing or it is unenforceable. Richards v. Richards, 9 Gray, 313. Glass v. Hulbert, 102 Mass. 24, 32, 33. McCusker v. Goode, 185 Mass, 607, 612.

If the front building line, with any language indicating the nature of the restrictions, had appeared on the plan, the defendant would have been estopped to deny an implied grant with covеnants coextensive with the scope of the plan, or, if by any appropriate wording of the deeds it appeared that the remaining lots as they.were sold should be subject to the restrictions, the statute would have been satisfiеd. Lipsky v. Heller, 199 Mass. 310. Sharp v. Ropes, 110 Mass. 381, 386. Boston Water Power Co. v. Boston, 127 Mass. 374. Kennedy v. Owen, 136 Mass. 199, 203. Beals v. Case, 138 Mass. 138, 141. Lowell Institution for Savings v. Lowell, 153 Mass. 530. The proposed restrictions undoubtedly formed part of the consideration for the purchases, and eaсh plaintiff would have had the right to demand that the defendant insert in the title deed a stipulation or covenant in accordance with the terms of sale. McCusker v. Goode, 185 Mass. 607, 612.

The judge, however, has found, and the evidence warranted the finding, that the agreement to restrict lot 5 rested wholly in paroi, and, ‍​​​‌‌​​​‌​‌​​​​​​​‌​‌‌​‌​​‌‌‌​​​​‌​​‌​‌‌​​‌‌​​‌‌‍even if executed as to the other lots, and a small portion of lot 5, it rеmained wholly executory as to her ownership of the residue.

To prevent the statutory bar the plaintiffs urge, that as thеre has been full performance on their part, relief should be decreed or the statute would be converted into a shield for fraud, a result not countenanced by a court of equity. Hubbell v. Warren, 8 Allen, 173, 178. Burns v. Daggett, 141 Mass. 368. But the mere non-performance of an oral contract, within the statute which is *384pleaded, as in the case at bar, and where no relation of ‍​​​‌‌​​​‌​‌​​​​​​​‌​‌‌​‌​​‌‌‌​​​​‌​​‌​‌‌​​‌‌​​‌‌‍trust and confidеnce exists, does not constitute fraud. Brightman v. Hicks, 108 Mass. 246. Campbell v. Dearborn, 109 Mass. 130, 140. Ahrend v. Odiorne, 118 Mass. 261, 268. Dunphy v. Ryan, 116 U. S. 491. Nor did the plaintiffs, on whom and not on the defendant the burden of part performаnce rests where this • ground for relief is sought, by taking title, entering into occupation and maldng improvements on their own estates in reliance upon the paroi agreement, acquire any legal or equitable interest in the defendants remaining land. Williams v. Carty, 205 Mass. 396. Caton v. Caton, L. R. 1 Ch. 137. Graves v. Goldthwait, 153 Mass. 268, 269. Low v. Low, 173 Mass. 580, 582. Sarkisian v. Teele, 201 Mass. 596. The suit cannot be maintained, and the bill must be dismissed.

Ordered accordingly.