Connors was the owner of land (the locus) in Randolph and Stoughton. On September 9, 1958, for $100 he gave to Tucker an option to purchase the locus for $15,000. The option could be accepted within sixty days by written notice. Conveyance was to be made within thirty days after such acceptance. The option was not recorded in the registry of deeds. About the same time one Lord began negotiations with Connors for the purchase of the locus. Lord went to the house of one TTpham, the holder of a second mortgage of the locus on which $7,300 was due, and bought that mortgage for $5,000. The mortgage was assigned to Lord on September 12, and he assigned it to Central Acceptance Plan, Inc. (Central).
While Lord and Mr. Brown, attorney for Central, were at the Upham house, Connors, who wished to purchase the mortgage himself, arrived and found them with Upham. One Kourafas was “outside . . . in an automobile.” Connors shortly thereafter agreed to sell the locus to Lord or his nominee for $5,000 subject to a savings bank first mortgage not to exceed $2,700 and to the second mortgage to Upham, the "[s]eller ... to obtain release of option” of September 9 “given to Tucker.” Lord had conversations
On September 26, Connors and his wife went to the registry of deeds to complete the sale to Lord. There were present Lord, Waldman, Carver, Kourafas, and Mr. Brown. Waldman represented Ruth Grleken, who was not present. She had been employed by Central for sixteen years and was then bookkeeper and clerk of Central. In the deed, which was then delivered and recorded, Miss Grleken was named as grantee. Lord in the presence of the others told Connors that Miss Grleken was “just a straw for” Lord, Kourafas, and Waldman.
Waldman paid Connors $8,000 in cash, although the purchase price set by Lord’s agreement with Connors was $5,000. Miss Grleken executed a demand note running to Central with interest at a rate of eight per cent. This note was secured by a third mortgage of the locus. No principal or interest payments have been made on this mortgage, and foreclosure proceedings have been initiated in the Land Court.
By letter dated October 7,1958, the envelope of which was post marked October 9, Tucker gave notice of his intention to exercise his option. On October 8, he filed this bill in equity alleging that Connors had “stated that he does not intend to convey” to Tucker, and that “if the premises are convoyed to a bona fide purchaser for value . . . [Tucker] may be unable to obtain title to the same. ’ ’ The bill prayed for temporary injunctive relief against any conveyance by Miss G-leken and sought (a) reconveyance of the locus to Connors, (b) a conveyance by Connors to Tucker in accordance with the option, and (c) damages.
The case was referred to a master to “find the facts and report his findings . . . together with such questions of law ... as any party may request.” The facts already stated are based upon the master’s findings. He concluded (1) that Tucker had an option, binding on Connors, which
Miss Gleken and Central filed objections to the master’s report and a motion to recommit. The objections asserted that Tucker was not entitled to relief (a) because his “action [sic] ... is based on an anticipatory breach of contract,” (b) because he has not alleged or proved that he was ready, willing, and able to carry out the purchase or that he made seasonable tender, and (c) because Lord, Kourafas, and Waldman were not joined as parties. Their further objections are anomalously phrased somewhat as „if they were requests for rulings of law. These objections merely assert (in various forms, of which that quoted below is representative, and all of which amount to about the same thing) that where “the holder of a 60 day option . . . states he is not going to buy the land, a subsequent attempt to enforce the option is inequitable and should not be aided by equity, particularly when the owner sold the land to another in reliance thereon.” In support of certain of the objections Miss Gleken and Central requested “that the master make a . . . summary of so much of the evidence as shall be necessary ... to determine the questions of law referred to in . . . [the] objections.”
In connection with their motion to recommit, their' counsel filed an affidavit that “the evidence was” that one savings bank had refused to lend money to Tucker on the security of a mortgage of the locus; that Tucker told Connors, before the latter conveyed to Miss Gleken, that Tucker was “not going to go through with the purchase”; and that there was no evidence of any tender by Tucker or that Tucker (or a corporation in which he had an interest) was financially able to purchase the locus.
Miss Gleken and Central have appealed from an inter
1. Whether Miss Grleken and Central were entitled as of right to any summary of evidence relevant to their exceptions depends upon Rule 90 of the Superior Court (1954),
2
which “is not to be ignored or evaded.” See
Morin
v.
Clark,
No exception to the report suggests that any finding by the master was not based upon evidence sufficient to support it. See
Morin
v.
Clark,
2. The affidavit filed, in purported compliance with Buie 46 of the Superior Court (1954), in support of the motion to recommit showed at most that there was evidence inconsistent with the master’s findings. The master was not required to believe this evidence and apparently did not regard it as credible. Whether to grant a motion to recommit for further findings is within the sound discretion of the judge. See
Black
v.
Parker Mfg. Co.
3. The bill in equity was not brought prematurely. Connors was bound by the option given to Tucker for a consideration. See Williston, Contracts (3d ed.) §§ 25, 61A-61D. Cf.
McPhail
v.
L. S. Starrett Co.
Tucker was not required to wait until the date for conveyance before seeking protection against such a further conveyance by Miss Grleken (a transferee with notice of the option) and specific performance by her and Connors. Bringing this bill was an election to exercise the option (see
Nichols
v.
Sanborn,
That actual conveyance was not due when the bill was brought is not fatal to a decree for specific performance. Even if a decree had been entered prior to the date set for conveyance, which would have been November 8, 1958, conditional equitable relief could have been made effective as of the day set for conveyance. The final decree, in fact entered on March 7, 1960, has made specific performance conditional upon payment by Tucker in accordance with the contract. See Restatement: Contracts, §§ 359-360; Corbin, Contracts, §§ 1141, 1143. If the decree is performed, the vendor will not be bound (cf.
Daniels
v.
Newton,
Tucker was not obliged to tender performance before suit. In the circumstances he was excused from taking action to be ready to make immediate tender, for the master could reasonably conclude that Connors by his conveyance in effect had repudiated any obligation to Tucker and would not convey to him unless a court compelled him to do so. See
Nichols
v.
Sanborn,
4. It is argued that Kourafas, Lord, and Waldman should have been joined as parties. Although they properly could have been joined, we see no necessity for such joinder. They were not indispensable parties in view of the relief sought by Tucker. Miss Gleken and Central, respectively record holders of the equity and of the second and the third mortgages, were parties. The master’s conclusion that Miss Gleken individually had notice of Tucker’s option through Waldman was justified by the subsidiary findings that Mr. Brown acted for Central of which Waldman was treasurer, that Waldman negotiated with
5. It is not clear that the final decree adequately binds Central to cooperate with Miss Grleken in making conveyance to Tucker, free of encumbrances, including arranging for a discharge of the second mortgage now held by Central. Accordingly, we think that the final decree should be modified by directing Central to discharge this second mortgage, or to transfer it to Miss Grleken so that she may cause its discharge of record. The decree should specify the amount which Miss Grleken must pay to Central (if, indeed, she is not “straw,” agent, or fiduciary for Central) for this discharge which should not exceed the lesser of (a) the amount paid by Central for the second mortgage, and (b) the amount due thereon. The ascertainment of this amount may require a further hearing. We think also (see
Nassif
v.
Boston & Maine R.R.
6. The interlocutory decree and the final decree, as modified in accordance with the preceding section (5) of this opinion, are affirmed. Tucker is to have costs of this appeal from Miss Gleken.
So ordered.
Notes
Rule 90, so far as relevant, reads, “Unless the court expressly orders otherwise, whenever any objection . . . raises a question of law which depends upon evidence not reported, the master, upon written request presented with the objection, shall append to his report, for the sole purpose of enabling the court to determine such question of law, a brief, accurate and fair summary of so much of the evidence as shall be necessary for such purpose. But where the objection raises the question whether the evidence was sufficient in law to support a finding of fact made by the master, no such summary shall be made without special order of the court, unless (Í) the evidence shall have been taken by a stenographer selected or approved by the master before any evidence was introduced, and (2) the objecting party shall at his expense furnish the master, within the time allowed for bringing in objections, with a transcript of so much of the evidence taken by such stenographer as is material to such question of law.”
A judge, in Ms discretion, may order a report of all or part of the evidence before a master.
Morin
v.
Clark,