325 Mass. 130 | Mass. | 1949
The defendants are husband and wife, and have since 1935 owned a house and land in Whitman. The plaintiffs’ bill in equity sets forth that in 1940 the defendants orally agreed with the plaintiffs that if the plaintiffs would move their nursing and rest home into the defendants’ house, the latter would sell the premises to the plaintiffs for $6,500 at any time during the occupancy by the plaintiffs of the premises, and that the rent of $50 a month paid by the plaintiffs would be applied on account of the purchase price. The plaintiffs moved in. In 1944 the price was changed in writing to $6,000 upon payment by the plaintiffs for painting. The bill alleges further that the plaintiffs, in reliance on the agreement, have paid large sums of money for the improvement of the premises, to the amount of $5,437.68, and also $4,200 on account of the purchase price. On December 6, 1947, the plaintiffs offered to buy under the agreement, but the defendants refused to sell, and notified the plaintiffs to quit the premises. The bill sought specific performance. The answer set up, among other defences, the statute of frauds.
The judge found to be true the facts set forth in the bill. He found that while the woman defendant did most of the talking with the plaintiffs, “the male defendant authorized his wife to act for him in the matter of the leasing and sale of the premises, was fully acquainted with all that was being done and assented thereto.” He found that $2,170.13 had been paid by the plaintiffs on account of the purchase price, leaving a balance due of $3,829.87. He found that the occupation and improvements constitute part performance, taking the case out of the statute of frauds. The final decree was for specific performance upon payment to the defendants of $3,829.87, with costs. The defendants appealed.
The defendants contend that if they gave to the plaintiffs “a continuing option of purchase unlimited in point of time, it is void ab initia, because it attempts to create a contingent future interest which may not vest within the period limited by the Rule against Perpetuities,” citing Eastman Marble Co. v. Vermont Marble Co. 236 Mass. 138, 152, 153. That case is inapplicable. Here the agreement was not intended to bind or to benefit the heirs of the parties. The option was to be exercised by the plaintiffs themselves, necessarily within their lives.
The defendants set up the statute of frauds, G. L. (Ter. Ed.) c. 259, § 1, Fourth, which provides that no action shall be brought “Upon a contract for the sale of lands, tenements or hereditaments or of any interest in or concerning them” unless the contract or some memorandum or note thereof is in writing and signed by the party to be
Decree affirmed with costs.