EDWARD CAWLEY vs. WILFRID JEAN

THE following statement of the case is taken from the opinion of the court:

This is a bill in equity for the specific performance of a

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written agreement contained in a lease whereby the defendant agreed to buy the property let on the expiration of the term created by the lease. There was a cross bill alleging that the agreement had been procured by the fraud of the plaintiff in the principal suit, and praying that it be delivered up and cancelled. The case went to a master, who reported that both the bill and cross bill should be dismissed. Exceptions to the report were taken by both parties. The exceptions of the plaintiff were sustained and those of the defendant overruled by the Superior Court. From this order no appeal was taken. Subsequently a final decree was entered directing the defendant to specifically perform the agreement, and dismissing the cross bill. From this decree the appeal was taken which is now before us.

It appears from the master's report that in 1878 the Middlesex Company conveyed to one Nathan Crosby the following lot of land: "A certain lot of land in said Lowell, situated on the southerly side of Church Street, and easterly of the land of the Lowell and Andover Railroad, containing one thousand four hundred and thirty square feet, as shown by a 'Plan of Middlesex Company land taken by the Lowell and Andover Railroad,' in possession of said Middlesex Company, bounded and described as follows: beginning at a point on the southerly side of Church Street, which is fifty-six feet easterly of the intersection of the southerly side of said Church Street, and the easterly side of Warren Court, thence easterly along the southerly side of said Church Street sixty-five feet to the line of Concord River; thence southerly along the line of said river forty-nine and one-half feet to land of the Lowell and Andover Railroad; thence along the land of said Lowell and Andover Railroad sixty-five feet to the point of beginning." This land is shown by a plan which was attached to the record and a reduced copy of which is printed on the next page. What are called the deed lines on the plan are the lines given by the distances stated in the deed. In 1878 a building was erected on the land, which is still standing and is the building here in question, except that the bulkhead shown on the plan was built in 1895. A deed of this land to the plaintiff was made in 1890, the description being the same as in the deed to Crosby.

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The report states that "At the time the plaintiff received the deed last mentioned and for eight or nine years prior thereto, a fence stood on the land on which the Lowell and Andover Railroad was located, distant about ten feet from, and nearly parallel to the southwesterly side of said building, and extending from a point a foot or two northwest of the Concord River for about sixty feet, thence turning and extending to Church Street in a nearly northerly direction, and intersecting Church Street at a point about ten feet west of the building, thence turning and running along the line of Church Street to the northwesterly corner of the building. The tracks of the Lowell and Andover Railroad are and were at the time the plaintiff received the deed

last mentioned on the southwesterly side of said fence, the rail nearest thereto being some seven or eight feet distant therefrom. . . . In 1895 the plaintiff made an entrance into the basement of the building on the southwesterly side by cutting an opening in the foundation wall about four feet wide and eight feet deep, and made an area by removing the adjacent soil for a distance on the land of the Lowell and Andover Railroad of about seven feet in length, four feet in width and seven feet in depth. This area was covered by a wooden bulkhead, attached to the building, covered with a heavy trap door, and extending to about one foot above the level of the land adjacent. A wooden door opened into the basement. I find as a fact that said bulkhead is a part of said building."

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In 1896 the plaintiff fitted up the building on the land as a steam laundry, and occupied it as such for nine months. After that it was vacant until it was let by word of mouth to the defendant for the same purpose on October 21, 1901. On March 8, 1902, this oral lease was put in writing and contained the agreement here sued on. The premises let by this indenture of lease were "the land and building thereon situate on the west side of the Concord River in said Lowell, bounded easterly by said river, - westerly by the location of the Lowell and Andover Railroad, and northerly by Church Street, being a triangular lot, together with all fixtures and machinery to said Cawley belonging in said building." The agreement contained in said lease to buy these premises was in these words: "And said Jean agrees at the expiration of the term hereinafter limited to buy the aforesaid real and personal property of said Cawley for the entire price of seven thousand dollars." The lease expired on April 21, 1903. On April 18 the defendant was informed that the building covered more land than the plaintiff owned, and on April 20 he told the plaintiff of this, and offered to carry out the agreement if the plaintiff would give him enough land to cover the building." This the plaintiff refused to do. On May 23 the plaintiff tendered a deed and bill of sale. The land covered by this deed is described as in the deed of it to the plaintiff and in that to the plaintiff's grantor. The defendant said he would take the deed if the plaintiff would "deed him more land." The plaintiff said that all he could give him was what was described in the deed. Thereupon the defendant refused to accept the deed and bill of sale, and on June 23 he vacated the premises.

No question was raised as to the machinery. In his report the master states that the defendant set up in defence that there were three parcels of land not covered by the building: (1) The triangular strip on the east, measuring two and ninety one hundredths feet at its base on Church Street; (2) the land under the eaves on the west, which protruded twenty-three inches over the division line; and (3) the land under the bulkhead. As to the first the master found that the land of the plaintiff went to the river because monuments control distances; as to the second that the plaintiff had an easement acquired by prescription; and

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as to the bulkhead he found "that the plaintiff has at no time possessed any title to or easement in the land under said bulkhead, which bulkhead I find, as above stated, to be a part of said building, and I find and rule that by reason of the plaintiff's inability to convey said land or any easement therein, the defendant is under no obligation to perform said agreement of purchase. I find that the use and enjoyment of said bulkhead and the land thereunder was a material inducement to the entering into of said agreement on the part of the defendant."

The defendant in his answer set up a false and fraudulent representation by the plaintiff that he owned all the land covered by the building and the ten foot strip shown on the plan east of the fence there shown.

On this the master made the following finding: "In regard to the allegation of fraud, I find that at the time of entering into the oral arrangement of October 21, 1901, the defendant believed that the plaintiff owned all the land covered by the building, and the ten foot strip of land between the southwesterly side of the building and the fence, and extending from Church Street to the Concord River, but that such belief was not induced by any statement or conduct of the plaintiff, on which the defendant had a right to rely, but was caused by the appearance of the building, and its surroundings. I find that the plaintiff said or did nothing to prevent the defendant from ascertaining the amount of land which the plaintiff owned, and that the defendant was negligent in not examining the title and making a survey of the premises. I find that this belief of the defendant as to the plaintiff's ownership continued at least up to March 8, 1902. If in view of my other findings, the belief of the defendant as to the plaintiff's ownership of said ten foot strip or of any part thereof is material in any aspect of the case, and if the burden rests upon the plaintiff of proving that the defendant had actual knowledge or actual notice of the plaintiff's want of ownership in said ten foot strip, or in any part thereof, I find that said burden had not been sustained, and that the defendant had no such knowledge or notice until April 18, 1903. If the burden rests upon the defendant of proving his ignorance of such want of ownership, I find that such burden has not been sustained, and that on March 8, 1902, at the time of the execution of said

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written agreement he was informed and knew that the plaintiff did not own said ten foot strip or any part thereof. I find, if material, that the defendant did not at any time have knowledge or notice that the plaintiff had built and was maintaining said bulkhead without right on land not owned by him, but on the contrary, at all times believed that said bulkhead had been rightfully erected and maintained, and that upon complying with said written agreement of October 21, 1901, he could continue to use and enjoy said bulkhead without lawful hindrance on the part of any person whatsoever."

E. I. Baker, (G. N. Shorey with him,) for the defendant.

J. J. Devine, for the plaintiff.