206 Mass. 28 | Mass. | 1910
This is a suit in equity brought to enforce compli
It is first contended that the bill cannot be maintained in this form by the present plaintiffs. The plaintiff Buttrick in his capacity as trustee was the owner of an estate within the protected area prior to July 28,1906, when he conveyed it to the plaintiff Stewart, who was a cestui que trust, taking back a mortgage to himself as trustee. There was evidence to the effect that this tranfer of title had been agreed upon a year before but was delayed on account of the appointment of a guardian ad litem. A mortgagee of real estate, even though out of possession, has such an interest as enables him to maintain an action for any part of the mortgaged estate wrongfully severed and converted into personalty. To this extent he is owner of the fee. Searle v. Sawyer, 127 Mass. 491. The reason for this is that the value of his security may be damaged. This reason extends to any act, whether done on the mortgaged premises or off, which may adversely affect the property described in his mortgage. He may maintain an action in the nature of waste or may go into equity to prevent the commission of waste. Restrictions like these create a right in the nature of an easement in favor of, as well as impose a liability upon, the grantee of every lot, growing out of the common character of the deeds. The interest is in a contractual stipulation for the common benefit. Evans v. Eoss, 194 Mass. 513. The nature of the right and obligation created by restrictions upon the use of real estate is such as to render their breach an injury to the fee of other land included within the scheme of improvement. A mortgagee is allowed to go into
No controversy arises between the two plaintiffs as mortgagor and mortgagee respectively. They both have an interest in the subject matter of the restrictions, which as to the defendant constitutes a unity, and they may properly join in one suit against him.
The single justice found that the plaintiffs had not been guilty of loches. This finding was based upon the hearing of oral evidence, and will not be disturbed unless plainly wrong. His memorandum states that neither plaintiff was aware of the defendant’s intention to violate the restrictions until his building was up. The finding is in accordance with the testimony of the plaintiffs, to which the single justice gave credence. It has been ingeniously argued that the circumstances of ownership of other property in the neighborhood and visits there, supplemented by the direct testimony of two witnesses to the contrary, shows that this finding is unsupported, at least as to the plaintiff Buttrick. But the testimony introduced by the defendant was not believed and the inferences from other facts were not inconsistent with ignorance by the plaintiffs of what the defendant was doing. In all this there was no error. The building was up about the mid-
The defendant contends that the plaintiffs cannot prevail because they are themselves violating the same restriction which they seek to enforce against the defendant. The original deed from the city of Boston, through which the defendant gained title, contained the clause that “A dwelling house has been erected and completed on said lot in conformity with the conditions and restrictions.” The record shows that the single justice found that the constructions now upon the plaintiffs’ lot were those originally placed there, and that they were substantially the same on the two lots. It follows that they were regarded on all sides more than fifty years ago as a substantial compliance with the restrictions. The photographs and chalks of the buildings in the neighborhood furnish some indication of like buildings upon similar lots. Whether these constitute in small particulars technical deviations from a strict compliance with the letter of the restrictions is of no consequence after the lapse of half a century of general concurrence in a practically uniform construction of their meaning by acts done. Frost v. Jacobs, 204 Mass. 1. Jackson v. Stevenson, 156 Mass. 496. Moreover, the minor respects in which it is claimed that the plaintiffs have violated the restrictions are of a character wholly different from the infractions committed by the defendant, and therefore are not to be regarded as a barrier to the enforcement of their rights. Bacon v. Sandberg, 179 Mass. 396.
It is strongly urged that a mandatory injunction ought'not to issue, for the reason that it would operate oppressively and inequitably, and impose on the defendant a loss disproportionate to the good it can accomplish, and that the plaintiffs ought to be relegated to financial compensation by way of damages. This remedy is a drastic one, and ought to be applied with caution, but in cases proper for its exercise, it ought not to be withheld merely for the reason that it will cause pecuniary loss. It has been found that the defendant with full knowledge of the restrictions “ deliberately attempted ” to override them, and thus to deprive the district of the character given it by the restrictions. He took his chances as to the effect of his conduct with eyes open to the results which might ensue. It has been the practice of courts to issue mandatory injunctions upon similar facts. Codman v. Bradley, 201 Mass. 361 and cases cited at 369. Curtis Manuf. Co. v. Spencer Wire Co. 203 Mass. 448. Downey v. Hood Sons, 203 Mass. 4, 12. Entrenchment behind considerable expenditures of money cannot shield premeditated efforts to evade or circumvent legal obligations from the salutary remedies of equity.
The costs allowed in the decree, including the expense of the surveyor’s plans, were within the discretion of the court, which does not appear to have, been wrongly exercised. R. L. c. 203, § 14. Stockbridge Iron Co. v. Cone Iron Works, 102 Mass. 80, 89.
Decree affirmed.
Throughout the opinion the defendant Finkelstone is called the defendant.