DAVID H. SIEGEL & another vs. DIANA D. SHAW.

WHITTEMORE, J. The plaintiffs sued to recover their deposit made under an agreement for the purchase of land in Newton. These are the defendant's exceptions to the direction of a verdict for the plaintiffs. Taking the evidence most favorably for the defendant the issue is this: May a seller who has agreed to convey "a good and clear record and marketable title . . . free from encumbrances" require the buyers to take the premises subject to a public easement for a sewer constructed and in place, of which the buyers, from inspection of the premises, had knowledge at the time the agreement was made, and of which there is an uncertain indication, seen by the buyers, on the plan which was attached to and incorporated in the agreement, as a part of the description of the premises ("Containing 183.8+/- acres of land according to a plan hereto annexed . . .")?

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The easement, beneficial or not, was an encumbrance (Kellogg v. Ingersoll, 2 Mass. 97, 101; Harlow v. Thomas, 15 Pick. 66, 68; Bennett v. Sheinwald, 252 Mass. 23, 28; Schon v. Odd Fellows Building Association, 255 Mass. 465, 468; Rubenstein v. Hershorn, 259 Mass. 288, 294; Queenin v. Blank, 268 Mass. 432, 435; Miller v. Schwinn, Inc. 113 Fed. [2d] 748, 751 [C. A. D. C.], and cases cited) which, manifestly, the seller could not, in all probability, remove (Gillis v. Bonelli-Adams Co. 284 Mass. 176, 178-179). If the buyers might refuse title because of the encumbrance, the purchase and sale agreement was, in its operative effect, only an option binding on the seller (see Rubenstein v. Hershorn, 259 Mass. 288, 295) but not on the buyers if for any reason they decided they did not wish to assume ownership. The rule may be a hard one in the particular case, as here, where the jury could have found that the buyers chose to stand on the defect in title because they were having difficulty in raising the purchase price and had been refused an extension. But it is the well established law that the tendered deed must convey a title in accordance with the requirements of the agreement, and the knowledge of the buyers in respect of existing encumbrances is irrelevant under the parol evidence rule. Harlow v. Thomas, 15 Pick. 66, 69. Spurr v. Andrew, 6 Allen 420, 422. Rubenstein v. Hershorn, 259 Mass. 288, 293. Queenin v. Blank, 268 Mass. 432.

The nub of the case is whether the indication on the plan of a possible sewer easement is a limitation of the undertaking to convey a title free from encumbrances. We do not think it is. On the plan are two parallel dotted lines, extending on an irregular course from a plot marked "City of Newton" entirely across the property and to and through the plot which bounds the land on the west and is marked "City of Newton Water Works Reservation." Between the lines at several places are printed the words "sewer & drain" and the designation "50' wide." It is apparent that the lines and markings are intended to show the course of a sewer or drain. The plan is indorsed "April 21, 1938. Compiled

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from office and public records by Henry F. Bryant & Son Engrs. . . .." This indorsement, we think, is insufficient as an assertion that the shown course of the sewer and drain is the course of an existing easement, and there is nothing else on the plan which affirms this expressly or by necessary implication. In the circumstances we do not think that the reference to the plan is the equivalent of a description of the premises to be conveyed as "a parcel containing 183+/- acres and subject to an existing sewer and drainage easement." Nor do we think that the agreement may be construed as an agreement to buy the designated land, subject to whatever existing easement or rights, if any, may underlie the "sewer & drain" lines shown on the plan. There is no ambiguity in the agreement. The reference to the plan is in the usual form to make more precise the boundaries and acreage. See Harlow v. Thomas, 15 Pick. 66, 68. It does not operate to cloud the meaning of the words "good and clear record and marketable title . . . free from encumbrances." In construing the unambiguous written instrument, we must exclude our knowledge that, as the jury could have found, the buyers knew about the easement and the constructed sewer, and were counting on it as an attractive aspect of the land for development for house lots. Doing so, and confining our view to the written agreement, the greatest effect of the plan is to show, within the instrument, a possible encumbrance which, for all that appeared, could be removed, and which the buyers were entitled to have removed under the stated terms of the bargain. Indeed, for all that appeared in the instrument, the indication could have been of a 1938 proposal for a sewer line which was never in fact carried forward into an easement or a constructed sewer.

We intend no suggestion as to the effect of a more precise reference to an existing easement on an incorporated plan.

The existence of the sewer easement was shown on the property by manholes. The jury could have found that the plaintiffs or one of them saw the manholes. This does not affect the result. Queenin v. Blank, 268 Mass. 432, 435-436.

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The written agreement controls. We do not think we should change the rules for construction of written instruments, especially those affecting the transfer of real estate, to try to fit the equities of a particular case. The importance and effect of an agreement to convey "free from encumbrances" are well understood.

The affirmative defence of waiver was not pleaded and hence is not open (Nashua River Paper Co. v. Lindsay, 242 Mass. 206, 208: Fairview Auditorium Corp. v. Fairview Auditorium Club, Inc. 331 Mass. 594, 596) but as the parties have argued the issue we discuss it. We see nothing in the facts as stated in the bill of exceptions to permit a finding of the elements of a waiver, by way either of estoppel or of a new agreement for good consideration. Rubenstein v. Hershorn, 259 Mass. 288, 293. Swan v. Drury, 22 Pick. 485, 489-490. Mead v. Fox, 6 Cush. 199, 202. Downey v. Levenson, 247 Mass. 358, 363-364.

The defendant relies on the evidence from which the jury could have found that at the closing conference the plaintiffs, having asked for more time to arrange financing, did not, up to the hour fixed in the agreement for passing papers, specify the encumbrance as a reason for not performing. But even though there may be a basis for a ruling of waiver in a situation which is similar except that the defect can be overcome (see Sullivan v. F. E. Atteaux & Co. Inc. 284 Mass. 515, 521, where the encumbrance was an outstanding excise tax), we think such evidence does not permit a finding of waiver or the application of the rule that tender of performance is excused if the other party has shown that he will not perform (Leigh v. Rule, 331 Mass. 664, 668) where the defect, as here, is almost certainly irremovable. In Rubenstein v. Hershorn, 259 Mass. 288, at page 293, we said, "The right . . . to have . . . payment `refunded' . . . was absolute, and could be availed of notwithstanding the fact . . . [that the buyers] saw fit to assert other or additional reasons for refusing to accept the deed. Moreover, no evidence was offered to prove that there was consideration for the relinquishment of their right or that they were estopped to

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assert such right by reason of any act or word of theirs upon which . . . [the seller] had relied to his harm. Prest v. Cole, 183 Mass. 283." We think notwithstanding the case of Marcus v. Clark, 185 Mass. 409, on which the defendant relies, the statement of the Rubenstein case as to consideration and estoppel is applicable. And see Vander Realty Co. Inc. v. Gabriel, 334 Mass. 267, 271. In the case before us the purchase and sale agreement provided that "If the seller shall be unable to give title or to make conveyance as above stipulated . . . the seller shall use reasonable efforts to remove any defect in title . . . and the time for the performance hereof shall be extended thirty days. In case at the expiration of the extended time the seller shall have used reasonable efforts and shall have failed so to remove and restore, any payment made under this agreement shall be forthwith refunded . . .." Manifestly if the defect had been removable the failure to specify it would have affected the plaintiffs' right to recover the deposit but in the circumstances we think failure to mention the encumbrance does not affect the result.

It is not necessary to consider an issue which was not argued, that is the possible effect of the evidence of the construction of a water line within the easement which was held by the city of Newton under a taking "for the purpose of laying, making, repairing and maintaining . . . [a]main drain and common sewer."

That the jury could have found that the plaintiffs were unable to tender payment and did not do so does not affect the result. "[T]he law does not require a party to tender performance if the other party has shown that he cannot or will not perform." Leigh v. Rule, 331 Mass. 664, 668. Vander Realty Co. Inc. v. Gabriel, 334 Mass. 267, 271.

We have considered all the points made in the able briefs of both parties. The order must be

Exceptions overruled.