117 Mass. 184

September 4, 1874

Suffolk County

A court of equity will not compel a person, who has agreed to purchase land, to accept a title so doubtful that it may be exposed to litigation.

On a bill in equity to enforce specific performance of an agreement to purchase land, the court will not, if there is any doubt, decide whether a proviso in a deed creates a condition or a restriction, when the parties, who may be entitled to enforce the restriction, or to take advantage of the breach of the condition, are not before it.

A. conveyed real estate in trust for B., giving B. the power to dispose of the whole or any part in fee by deed of appointment or by will. B. exercised the power by conveying, by separate deeds, three adjacent lots to her three daughters, giving one lot to each daughter for a nominal consideration. Each lot had a house on it and a stable in the rear on another street; and each deed contained the clause, "provided that the roof of the aforesaid stable shall never be raised more than thirteen feet above" the street, on which it was situated. B. by will gave to her executors "all the estate which I have power to give or dispose of in any way," to divide into three equal shares, one of which was to be given to each of her three daughters. The executors conveyed to each daughter one third part of all the right, title, in terest and estate of said grantors under the devise of B. in and to certain lands not mentioning the lands conveyed by deed of B., "and all other lands which said

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grantors hold as tenants in common and undivided under the devise of said B." The plaintiff owning one of the parcels conveyed by B. to her daughters, made a contract of sale with the defendant in regard to it, and on a refusal by the latter to perform, brought a bill in equity for specific performance. Held, that there were objections to the plaintiff's title, which were not so clearly without foundation as to justify the court in decreeing specific performance. Held, also, in an action at law for breach of said contract, that the proviso was a restriction for the benefit of the other two lots, and not a condition, and that the restriction applied to a building of any description on the land where the stable stood.

THE FIRST CASE was a bill in equity to enforce specific performance by the defendant of an agreement in writing for the purchase of a house and lot of land in Boston, extending from Chestnut Street to Mount Vernon Street. The answer set up that the title was incumbered by a condition or restriction which prevented the erection of any building of a greater height than thirteen feet, upon that part of the land abutting on Mount Vernon Street.

Hearing before Morton, J., who reserved the case for the consideration of the full court on the bill, answer and an agreed statement of facts. The nature of the case appears in the opinion.

J. C. Gray, Jr., for the plaintiff.

H. Stockton & R. Gray, for the defendant.

WELLS, J. In 1806, these premises, with two other similar parcels adjoining upon either side, each having a house fronting upon Chestnut Street, and a stable in the rear, were held in trust for the use of Mrs. Hepzibah C. Swan, with power to dispose of the whole or any part in fee by deed of appointment or by will. She exercised the power in favor of her three daughters, conveying one of these three houses and lots to each, in three successive years, inserting in each deed the clause, "provided that the roof of the aforesaid stable shall never be raised more than thirteen feet above Olive Street" -- now Mount Vernon Street. The deed of the parcel which the plaintiff now owns was the second of the three in order of time, being dated in 1807. Mrs. Swan had a like interest in a lot of land upon the opposite side of Olive, or Mount Vernon Street; but any rights to enforce this restriction, that may have attached to those premises, have been severed and discharged by the terms under which they were subsequently conveyed by her executors.

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Mrs. Swan by her will gave all the estate which she had power to give, or dispose of in any way, to her executors to be divided in three equal shares, one of which they were to convey to each of her daughters. The executors, accordingly, conveyed to each of the daughters, "one third part of all the right, title, interest and estate of said grantors, under the devise in trust of said Hepzibah Swan in and to" certain lands, not mentioning those conveyed by deed to her daughters, "and all other lands which said grantors hold as tenants in common and undivided under the devise of said Hepzibah deceased."

The questions raised are whether the clause, above quoted from the deed, created a condition of the conveyance, or a restriction in favor of the appointees of the other two parcels, for the mutual benefit of the three; and whether, in either case, it has since been discharged by the effect of the will of Mrs. Swan, or by the partition of her estate; and if not discharged, whether it forbids the greater elevation of a stable only, or applies to buildings of any and all descriptions, it being agreed by the parties that the land on Mount Vernon Street has not been used for a stable for the last twenty years; and that if the condition or restriction applies to that part of the premises only when used as a stable, it shall not be deemed a defect in the title.

The discussion of these questions before us has evinced, on both sides, thorough research and accurate appreciation of the principles involved. But even if the court has now all the aid it can reasonably expect at any time in reaching a conclusion upon the points that have been presented, the difficulty is that we cannot now make any authoritative decision. The parties interested to enforce this restriction, or who may claim to be entitled to take advantage of a breach of condition, are not before us; and no decree that we might render in this case, or opinion we might express in regard to their rights, would be binding upon them in any future litigation; nor would it be binding upon the court, to affect its consideration of the questions anew when presented by such parties. This is a sufficient reason in equity for not requiring a purchaser to accept a title that is in any way doubtful. Sohier v. Williams, 1 Curtis 479, 491.

In an action of contract to recover damages for breach of the agreement, the court would necessarily decide all such questions,

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for the purpose of the suit and as between the parties to it, because they affect the rights and obligations of the parties under the agreement, all of which are concluded between them by the judgment. But the consequences of such decision do not extend beyond that judgment. On the other hand, the effect of this proceeding in equity, if the plaintiff should prevail, would be to require the defendant to accept as perfect a title which he may hereafter be compelled to defend against incumbrances now pointed out, the validity and effect of which cannot now be conclusively determined as against future litigants who may seek to enforce them.

It is urged by the plaintiff that the court should at least pass upon the question whether the proviso in the deed of Mrs. Swan is a condition now in force which may defeat the title derived under it; because otherwise it can never be brought to a decision except at the risk of forfeiture of the entire estate. But that is precisely what the court has not power to do, so as to conclude those to whom the benefit of the condition, if it be one, has passed; and the effect of a decree, overruling this defence, would be simply to transfer from the plaintiff to the defendant whatever of risk or inconvenience there may be from such a cause. Hence the propriety and the necessity of the rule in equity that a defendant, in proceedings for specific performance, shall not be compelled to accept a title in the least degree doubtful. It is not necessary that he should satisfy the court that the title is defective so that he ought to prevail at law; it is enough if it appear to be subject to adverse claims which are of such a nature as may reasonably be expected to expose the purchaser to controversy to maintain his title, or rights incident to it. Richmond v. Gray, 3 Allen 25. Sturtevant v. Jaques, 14 Allen 523. Hayes v. Harmony Grove Cemetery, 108 Mass. 400. He ought not to be subjected, against his agreement or consent, to the necessity of litigation to remove even that which is only a cloud upon his title.

The plaintiff has not succeeded in satisfying us that the objections, which are made to the title he offers to convey, are so clearly without foundation as to justify the court in requiring the defendant to accept it in fulfilment of his agreement. The bill must therefore be

Dismissed without prejudice.