Watters v. Blatt

Braley, J. The evidence not having been reported, the master’s findings of fact are conclusive, and the only question on the plaintiff’s appeal is, whether on the pleadings and the report, to which no exceptions appear to have beep taken, the decree dismissing the bill should be reversed. It is alleged in the bill and admitted in the answer, that the plaintiff was the owner of a large tract of land in Revere laid out into house lots as shown by a plan referred to in the report. The defendant on April 30, 1920, by mesne conveyances acquired title to one parcel designated on the plan as lot 0 and on August 3, 1920, the plaintiff also conveyed to him lots M and N. But the deeds describe the parcels by metes and bounds, without reference to the plan, or to any numbers or descriptive letters. See Lipsky v. Heller, 199 Mass. 310, 315. The deeds, however, after the granting clause recite: “ This conveyance is made subject to the restrictions, covenants and agreements contained in an indenture between the Commonwealth of Massachusetts and Hiram A. Raddin et ais bearing date February 2, 1898, and recorded with Suffolk Deeds, Book 2514, Page 468; and also to the following restrictions which shall continue in force until January 1, • 1935, unless sooner terminated as hereinafter provided: — (1) No intoxicating liquors shall be made or sold upon the premises. (2) No buildings other than dwelling houses each to be used by two private families, and not more than one private stable, or not more than one automobile house to be used in connection with each dwelling house shall be erected or placed upon the above described premises. (3) No one family dwelling house which shall cost less than five thousand dollars ($5000) nor private stable costing less than one thousand dollars ($1000) nor automobile house costing less than five hundred dollars ($500) nor two family dwelling house which shall cost less than eight thousand dollars ($8000). shall be erected or placed upon the premises. (4) No dwelling house shall be erected or placed upon said premises, or any portion thereof, any part of which shall be at a less distance than ten (10) feet from any street or avenue upon which the premises or any [346] portions thereof are now or may hereafter be bounded and no stable or automobile house shall be erected or placed upon the premises or any portion thereof, at a less distance than fifty (50) feet from any street or avenue upon which the premises, or any portion thereof are now or may hereafter be bounded; nor shall any building of whatever description be placed at a less distance than five (5) feet from the division lines of any lot into which the premises may hereafter be divided. (5) No fence shall be placed on the side or sides of the premises bounding any street or avenue now or hereafter to be constructed, and no fence shall be erected on any part of said premises which is over four (4) feet in height. (6) The grantor reserves the right to terminate these restrictions except those imposed by the Commonwealth of Massachusetts, in whole or in part at any time, or any restrictions which may have been placed upon the other land of this grantor on said Revere Beach Boulevard or adjacent thereto. The grantee agrees for himself and his heirs and assigns to keep all buildings which may now or hereafter be erected upon the granted premises painted and in good repair at all times; and also to keep the premises free from refuse and rubbish of all description at all times. The grantee further agrees for himself and his heirs and assigns that he will not make any subdivision of the premises hereby conveyed into a lot or lots having a frontage of less than forty-nine and 94/100 (49.94) feet on the aforesaid boulevard. Said premises are also conveyed subject to all the rights and easements acquired in said premises by the City of Revere under a taking, by virtue of Chapter 303 of the Acts and Resolves of 1917, recorded with Suffolk Deeds, Book 4065, Page 433.” The restrictions were valid, and can be enforced by the plaintiff, who, when the deeds were delivered and the bill was filed, owned land adjoining the lands conveyed. Sanborn v. Rice, 129 Mass. 387, 396, 397. At the date of the first purchase by the defendant, there was a dwelling house on the premises referred to in the report as the “ Morrell house,” but the land acquired by the second purchase was unimproved. The defendant shortly after April 30, 1920, began the erection of a garage which was in [347] tended for use by him in connection with the Morrell house, which he occupied. This garage is described in the report as the “ old garage.” The master having found that it was maintained for the private use of the defendant as incidental to his occupation of the house, the only question is, whether its location was in violation of any of the restrictions. It is found, that the northwest corner of the building is one and one half feet from the northerly boundary of lot 0 and projects over the division line between lots O and l<f as shown on the plan, being ten feet on lot 0 and fifteen feet on lot N. The garage accordingly was erected in violation of restriction four, which, among other conditions, provides that no building of any description “ shall be placed at a less distance than five (5) feet from the division lines of any lot into which the premises may hereafter be divided.” The plaintiff not having made any complaint until April 17, 1922, nearly two years after the garage had been built, the defendant contends that the violation was waived. But waiver was a question of fact, and, the master having stated that upon all the evidence he is unable to find that the defendant has made out this defence, we are unable to concur with the trial court that the plaintiff, although cognizant of the presence of the garage, did not object thereto from August 3, 1920, to October 17, 1921, which was an unreasonable length of time, whereby relief was barred. The plaintiff’s further contentions are that the dwelling house and the garage therewith built by the defendant on the two lots under the second purchase, described in the report as the “ new dwelling house ” and the “ new garage,” were erected, and are maintained, in violation of the restrictions. It is found that the new dwelling house is built over the division line between lots 2929 and 2976 as shown by the plan, with a set back of ten feet from the westerly side line of the Boulevard, and that the rear of the house is about one foot distant from the division lines of lots 2929 and 2976. The master reports that the house is not a dwelling for three families as the plaintiff apparently contended, but is constructed as a dwelling for two families, and that in cost, Style of construction, and structural arrangements, it is in [348] conformity with restrictions two and three. The plaintiff however contends, that the location of the house is in violation of restriction four. While the plan showed two lots numbered 2976 and 2929, the description in the plaintiff’s deed to the defendant as we have said is of one tract which includes both lots. The plaintiff is bound by the terms of her conveyance voluntarily made. Abbott v. Frazier, 240 Mass. 586. The preliminary negotiations before title passed, the discussion of the nature and character of the restrictions, and of the portraiture of the plan, cannot enlarge nor diminish the rights of the parties which are to be ascertained from an unambiguous instrument. Sprague v. Kimball, 213 Mass. 381. The purchase of these lots as described in the deed constituted an indivisible estate which the defendant could occupy and develop subject to the restrictions applicable to his title to two lots as one parcel, and not two separate lots with exterior division lines. Beekman v. Schirmer, 239 Mass. 265. Prest v. Ross, 245 Mass. 342. And the building and maintenance of the new dwelling house did not violate the restrictions. The new garage also is built wholly on lot N, the defendant’s land. According to the master’s report, the southwest corner is three and one tenth feet instead of five feet from the division line between lots M and N as shown on the plan, and the southeast corner is four and six tenths feet from the division fine between lots M and N, while the northerly line of the garage is more than five feet from the southerly lot fine of lot 0 as shown on the plan. It thus appears for reasons previously stated, that, if the division lines between lots M and N are to be disregarded for reasons just stated as to the new dwelling house, the garage being more than five feet from the southerly lot fine of lot 0 is not within the restrictions. It follows that the bill can be maintained as to the old garage. The decree must be reversed. The case is to stand for further proceedings in the trial court not inconsistent with this opinion. Ordered accordingly.