Locke v. Hale

Morton, J. The defendant contends that the effect of the provision in the deed from Johnson to Taylor, which constitutes the alleged encumbrance, was to create an easement or servitude in favor of the premises occupied by Johnson as a residence at the time when the deed was given by him to Taylor, and that the defendant’s husband, by joining in her deed and releasing to the plaintiff “ and his heirs and assigns all right in the granted premises, whether by courtesy or otherwise,” has extinguished it. We do not think that such a construction should be given to the deed. Johnson’s residence was on the opposite side of the street, and there is nothing in the deed, or in the manner of using or occupying the respective estates, or in their situation, which in terms or by necessary or reasonable implication shows that the provision was designed to subject the property that was conveyed to Taylor to an easement in favor of the premises where Johnson lived. The case is very different from Merrifield v. Cobleigh, 4 Cush. 178, on which the defendant relies. It probably was or would be an advantage to the premises where Johnson resided that houses built on the opposite side of the street should be set back a certain distance from the street line, and that outbuildings should not be nearer to it than a certain other distance. But we cannot by reason of that fact alone construe the provision as subjecting the lot [23] conveyed to an easement or servitude in favor of the premises occupied by Johnson. A more natural construction would be, it seems to us, that it was expected that other lots besides the one purchased by Taylor would be sold out of the tract of which that was a part, and that the condition or restriction which was inserted in the deed to him was one which it was expected would be inserted in other deeds, for the common benefit and advantage of parties so purchasing and their successors in title. Whether regarded as a condition or restriction, it constitutes an encumbrance. Ayling v. Kramer, 133 Mass. 12. The defendant has placed some stress on the use of the word “ assigns,” in the provision creating the encumbrance. The right of entry for breach of a condition subsequent is not assignable, and if the provision is to be regarded as creating a condition subsequent the word was inapt. Hopkins v. Smith, 162 Mass. 444. We think that, if it is not to be rejected altogether, it is to be regarded as inserted rather to show that the condition or restriction was a continuing one, than with a purpose to establish an easement or servitude in favor of the premises occupied by Johnson as a residence. It is not necessary to consider whether, if an easement or servitude was created as contended by the defendant, it has been extinguished by the joining of the defendant’s husband in her deed, and releasing “ all right . , . by courtesy or otherwise.” Judgment affirmed.