McCusker v. Goode

Knowltoit, C. J. This is a bill in equity brought to enforce certain restrictions upon the use of the defendants’ land. The bill was dismissed and the plaintiff appealed. The testimony was heard orally by the presiding judge, and was reported by a commissioner and made a part of the record which came to this court. The evidence tended to show, and we infer that the judge found, that neither of the defendants had any notice of facts on which the claim is founded, except that which appeared of record in the registry of deeds. There is nothing in the report to indicate that this finding was erroneous. The testimony was uncontradicted that each of the defendants had the title exam-, ined before taking his deed, and was told by the examiner that there were no restrictions upon the premises. We are, therefore, brought to the questions whether there was such an incumbrance upon the property, and if so, whether there was [610] anything in the registry of deeds that gave constructive notice of it. The plaintiff’s contention is that by reason of a sale of certain lots by auction, subject to restrictions as to the kind of buildings that might be erected upon them and the distance from the line of the street at which buildings might be erected, the purchasers acquired the right, among themselves and against the vendors who retained other lots, to have these restrictions enforced. The plaintiff purchased one of these lots, and the defendants’ lot was one that was not then sold but was retained and subsequently sold by the vendors. The pleadings and evidence show that eight lots along the street were offered for sale by auction, of which three were sold, one to the plaintiff and one to each of two other persons. A deed of his lot was made to each of the three, containing the restrictions. It is averred in the bill that three other lots were bid off at the sale but the respective purchasers thereof never completed their purchases and no deeds were ever executed or delivered to the purchasers. It is also averred that the remaining two lots were withdrawn from the sale immediately after the others were sold. The only proof as to these two averments is that two of the lots were bid off for the vendors and the third was bid off for a person of whom nothing is shown, and that two of the lots were not bid off by any one. All that the registry of deeds showed in regard to the defendants’ lot is that the later conveyances described it as free from incumbrances, while two deeds earlier in the defendants’ chain of title, one from one of the persons who sold to the plaintiff and one from his grantee, described the lot “ as subject to such restrictions as are now in force and applicable to the granted premises, if any there be.” It showed that there were no restrictions upon the lot, unless restrictions resulted from the sale of the other three lots already referred to, and from the sale by the same vendors of another lot on the same, street, shown on the same plan, a considerable time before, the deed of which contained the same restrictions. None of these deeds in terms purported to give any rights in any other lots. They simply restricted the use of the lot granted, in the manner described. The plaintiff also introduced evidence that the advertisement of the auction sale and the announcement [611] of the terms of the sale by the auctioneer contained a statement that the eight lots would be sold at the auction, subject to these restrictions. The vendors were the owners of much other land in the vicinity, whose value would be affected by putting restrictions on these lots. The principal question to be considered may be divided into two parts: first, did the auction sale give the purchasers rights among themselves, respectively, to have the restrictions enforced for their benefit; secondly, if it did, did their rights also extend to the lots which were retained by the vendors, and did the record give constructive notice of these rights to subsequent purchasers ? If the lots had all been sold according to the terms of the sale and deeds made accordingly, the facts would have justified, if not required, a finding that there was a general scheme of improvement in the division of the land into lots and the sale of them with restrictions, which was intended to give to every purchaser the benefit of the restrictions. Parker v. Nightingale, 6 Allen, 341. Hano v. Bigelow, 155 Mass. 341. Jackson v. Stevenson, 156 Mass. 496,501. Nottingham Patent Brick & Tile Co. v. Butler, 15 Q. B. D. 261, 269 ; S. C. 16 Q. B. D. 778, 784. Collins v. Castle, 36 Ch. D. 243. In re Birmingham & District Land Co. [1893] 1 Ch. 342, 346, 349. Tallmadge v. East River Bank, 26 N. Y. 105. There is good ground for contending that, after a sale upon such terms, at which some of the lots were retained by the vendor, a purchaser would have a right to insist that his deed should contain a stipulation that the remaining lots should be held and sold subject to the same restrictions. Thereby he would acquire an easement in the remaining lots, giving him the same rights in regard to their sale as he would have in regard to the lots already sold subject to the restrictions. In re Birmingham & District Land Co. [1893] 1 Ch. 342, 346, 349. It is the policy of our law in regard to the recording of deeds, that pei’sons desiring to buy may safely trust the record as to the ownership of land, and as to incumbrances upon it which are created by deed. R. L. c. 127, § 4. Woodward v. Sartwell, 129 Mass. 210. Dow v. Whitney, 147 Mass. 1. There was nothing contained in any deed which purported to restrict the use of [612] the lot sold to the defendant Goode. Restrictions contained in three deeds made at or about the same time, and in another made a considerable time before, would not show that the restrictions were imposed upon other lands which remained unsold. Restrictions resting simply in paroi could not be enforced. R. L. c. 127, § 8. The statement in regard to restrictions in the advertisement of the auction sale was of no effect upon land that was not sold and which afterwards came to the defendant Goode. The paper stating the terms of the sale, which was signed by the plaintiff and others who bought lots, was a contract by each in regard to the purchase of his lot. If impliedly it gave rights in regard to the lots which were retained, it was merely a memorandum or preliminary contract, which never was recorded, and which was superseded by the completion of the sale, the delivery of the deed and the payment of the price, for all of which it provided. It is of no effect to create an incumbrance against a subsequent bona fide purchaser of land which was not sold at the auction. The only question of difficulty in the case is that which we have already considered in part, whether a reference in the deed from the original owner to “ such restrictions as are now in force and applicable to the granted premises, if any there be,” is effective to create or continue an incumbrance upon the defendants’ land. .This depends upon whether there were then any restrictions “ in force ” upon it. If there were restrictions, they were created by the deeds. The plaintiff’s deed was made on October 13, 1892, and presumably the deeds to the other purchasers at the auction were made about the same time. The deed of the defendants’ lot, from one of the owners who originally offered it at auction, was made on June 15, 1899. In the meantime there had been a partition of the property, which was owned by tenants in common, and this lot had been set off to the owner who made the deed to the defendants’ predecessor in title. The paper signed by the plaintiff at the time of the auction was a simple memorandum, not under seal, and if rights ever could have been enforced under it, they were then barred by the statute of limitations. We are of opinion that these deeds to the purchasers gave them no rights to restrictions, that could be [613] enforced against the original owners seven years after the sale, upon the lots which they then retained. Whether the plaintiff could have enforced such restrictions against them immediately after the auction sale is a very different question, which we need not now decide. Decree affirmed.