RICHARD W. FRANK & others vs. LOUIS W. VISOCKAS & another.

SPALDING, J. In this bill in equity the plaintiffs, who purchased their respective parcels of land with certain restrictions from the defendants, seek to impose these restrictions upon the defendants' remaining land. A master, to whom the case was referred, filed a report and, at the plaintiffs' request, a summary of certain evidence. An interlocutory decree was entered confirming the report. Thereafter a final decree was entered dismissing the bill, from which the plaintiffs appealed.

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We summarize the pertinent facts as follows: On December 2, 1958, the defendants owned a tract of land consisting of about ninety-eight acres in the towns of Bolton and Harvard. From that date to October 31, 1966, the defendants sold five parcels of land, totaling about twelve acres, to the plaintiffs. The defendants made no other conveyances of any land in the tract. In each of the deeds they imposed the same restrictions, with the exception of one minor variation, on the grantees' use of the premises. [Note 1] These deeds did not impose any restrictions on the defendants' remaining land. Each parcel sold was plotted on a separate plan recorded with the deed thereto, and no subdivision plan of the area was filed in the registry of deeds. One of the plaintiffs, however, "was shown a copy of a plan having five lots laid out on . . . [the defendants'] premises."

It appears that the defendants orally assured each of the plaintiffs that all lots of land subsequently sold would be subject to the same restrictions imposed in the plaintiffs' deeds and that the defendants would assiduously protect the tract's rural and residential characteristics. The defendants, however, now plan to establish a recreational area on their remaining land, a use which apparently would be prohibited by the restrictions imposed on the plaintiffs' land.

The sole issue, as the plaintiffs state, is whether the statute of frauds, although not pleaded, precludes the plaintiffs, the grantees of restricted land, from enforcing the defendants' oral promises to impose the same restrictions on the land retained by them. The judge ruled that the statute was a bar to the relief sought by the plaintiffs. We agree. "[I]t was settled in this Commonwealth by Sprague v. Kimball, 213 Mass. 380, that the statute of frauds prevents

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the enforcement against the vendor . . . of any implied or oral agreement that the vendor's remaining land shall be bound by restrictions similar to those imposed upon lots conveyed. Only where . . . the vendor binds his remaining land by writing, can reciprocity of restriction between the vendor and the vendee be enforced." Snow v. Van Dam, 291 Mass. 477, 482. Belmont v. Massachusetts Amusement Corp. 333 Mass. 565, 572. G. L. c. 259, Section 1, Fourth. See Restatement: Property, Section 522 (1). But see Section 524 c, Illustration 1, of the Restatement. Here there was no evidence in writing, either in a plan or in the deeds, that the restrictions were to apply to the defendants' remaining land.

The statute of frauds was not pleaded by the defendants. Accordingly the plaintiffs contend that the defence is not available to the defendants. It is true that ordinarily the statute of frauds cannot be relied on unless pleaded. Middlesex Co. v. Osgood, 4 Gray, 447. Stoneham Five Cents Sav. Bank v. Johnson, 295 Mass. 390, 393. Young v. Paquette, 341 Mass. 67, 76. G. L. c. 231, Section 28. But it has been held that if the bill does not contain allegations plainly showing a situation where the statute might apply there is no occasion to plead it and the defendant may have the benefit of it, even though not pleaded. Tourtillotte v. Tourtillotte, 205 Mass. 547, 551. See Lawson v. States Constr. Co. 193 Va. 513, 521. That is the case here. Neither the plaintiffs' original bill nor their amended bill alleged that the defendants made any agreement (oral or otherwise) relating to the restrictions. In these circumstances the statute was available to the defendants.

Interlocutory decree affirmed.

Final decree affirmed with costs of appeal.