187 Mass. 256 | Mass. | 1905
The only question before the court is the nature and extent of the possible restriction, stipulation or agreement created by the deed of Oliver Brewster to John Foster, dated
We cannot accede to the petitioner’s contention that the agreement in question is nothing more than a personal covenant on the part of John Foster. The case of Clapp v. Wilder, 176 Mass. 332, on which the petitioner has largely relied in support of that contention, went on the ground that the thing provided for there was put in the form of a common law condition; and although a stipulation put in the form of a common law condition may operate not only as a condition but as an equitable restriction as well, Hopkins v. Smith, 162 Mass. 444, there was not enough in that case to show that the common law condition there in question operated also as an equitable restriction.
The petitioner has relied also on the case of Badger v. Boardman, 16 Gray, 559. That case must be taken to rest on special circumstances. It was heard on the merits, and it is stated in the report that Downing, the grantor in the deed containing the “ restriction ” which the plaintiff sought to enforce, was “ the owner of all these parcels of land, which were described on a plan thereof, dated the 12th of December 1843, and recorded in the registry of deeds.” It must be assumed that that plan was before the court, although it is not set forth or otherwise described in the report. On an examination of it in the registry of deeds, it appears that the question then before the court was not the case of an owner of two lots selling one of them, as in the case at bar, but a more complicated situation. The grantor in that case owned seven lots on the westerly corner of Bowdoin and Cambridge Streets in the city of Boston. Five of the seven lots faced on Bowdoin Street and two on Cambridge Street. The lot conveyed to the defendant was lot No. 3; the lot which eventually came to the plaintiff was lot No. 4, next north of No. 3; and it was conveyed by the original grantor after lot 3 was conveyed. The lot on the corner was lot No. 5. All these lots faced on Bowdoin Street. Lots 6 and 7, facing on Cambridge Street, ran back across the rear end of lots 5, 4 and 3, to the southerly line of lot 3. There was nothing to indicate that the “ restriction ” in question forbidding any buildings or shed ever being erected westerly of the main building [on lot 3] “ of a greater height than those now standing thereon ” was for the
Skinner v. Shepard, 130 Mass. 180, the other case principally relied on by the petitioner, is a case where an action was brought for breach of a covenant of warranty in a deed from the defendant to the plaintiff. The breach relied on was that in a deed under which both claimed title there was a provision that no building should ever be placed within twenty-five feet of Green Street, on which the premises faced. The only fact in connection with this deed put in evidence by the plaintiff as showing that this provision constituted an equitable restriction and not a personal covenant was that the grantor, at the date of the deed in question, owned a parcel of land on the other side of a railroad which bounded the granted premises on the west. The granted premises were a tract containing over sixty-five thousand square feet of land, and the provision in question was coupled with a provision that the occupant of a part of the premises next the railroad, used for a lumber yard, should have six months in which to remove his lumber. The two provisions were not only coupled together, but were part of the same sentence. Under the rule previously laid down in Episcopal City Mission v. Appleton, 117 Mass. 326, 329, each part of this provision must receive the same construction. It is plain that the latter part of the provision requiring the lumber to be removed within six months was not an equitable restriction. On these facts it was held that the plaintiff had not made out that the provision in question was anything more than a personal covenant.
In the case at bar the things provided for are stated to be “restrictions and agreements” subject to which the land was conveyed. From the nature of the provisions, namely, a set back from the street in front, a limit to the depth of the house on the back and a specified fagade which was to make the house to be built on the lot conveyed one building with the house already built on the land of the grantor and the two houses next south of it, are in their nature matters which would benefit the adjoining land of the grantor; and, as if to put beyond a doubt the question of this restriction having been imposed for the benefit of the only lot remaining owned by the grantor, it
But we are of opinion that the petitioner is correct in his contention that the duration of the restriction in the case at bar was limited to the life of the first house erected on the granted premises.
This case is governed by American Unitarian Association v. Minot, 185 Mass. 589. Indeed there is a reason here for holding the restriction to be thus limited in its duration which we did not have in that case. That is the provision that: “ The front elevation and the material used in the construction of the front on Arlington Street shall correspond with my house adjoining according to the plan of G. J. F. Bryant herewith to be recorded, including a projection of about one foot on the front line as indicated on said plan. Two or three windows may be inserted in the front elevation from the second floor up, and one or two in the basement floor as may be preferred by the grantee or his representatives. The front on Marlborough Street shall be of freestone, and shall correspond as nearly as may be with the front on Arlington Street, or however otherwise said premises may be bounded, measured or described.” The plan referred to is a plan of three houses; the house here in question on the corner, Brewster’s house and the house next beyond on the south. The facade shown is a fagade of what is, together with the house on the grantor’s lot, the house next to it and the other corner house (which is not drawn out but is indicated on the drawing), one building. It hardly could have been the intention to restrict in this minute way in perpetuity the buildings to be erected on this lot of land.
The respondents contend that this case is not governed by American Unitarian Association v. Minot, because in that case five of the six houses there in question had been torn down and buildings erected in their place which were not dwelling houses, and that while the sixth still stood, it had been converted into a
The decree entered by the Superior Court must be modified accordingly. So ordered.