Leonard v. Wheeler

Carroll, J. This is an action of contract to recover $1,000, deposited with the defendants under a written contract of sale of certain real estate. The contract provided that the defendants were to sell and the plaintiff to purchase the real estate, to be conveyed “by a good and sufficient warranty deed” of the defendants “conveying a good and clear title to the same, free from all incumbrances”; that the premises were to be conveyed on or before May 1, 1922; and that the purchase price was to be $12,040. It was agreed that the defendants received under the contract a deposit of $1,000. Prior to December 3, 1915, the real estate in question was owned by Almira E. Thompson, who died in December, 1920. The defendants are her residuary devisees, and the real estate owned by her passed to them by her will, which was duly admitted to probate. Marion L. Swan, who died October 23, 1920, was the daughter of Almira E. Thompson. On December 3, 1915, Mrs. Thompson conveyed the premises to Marion L. Swan, to “have and enjoy ... so long as she may live with privilege of sale, if need be, and appropriation of the proceeds of said sale to herself absolutely .... In the event said above described premises are not disposed of during the lifetime of said grantee, as above provided, the remainder is to vest absolutely in the Town of Orange . . . in trust, however, to provide and maintain a home . . . for the needy and worthy aged and infirm.” This deed was recorded January 22, 1916. On February 17, 1916, Mrs. Thompson again conveyed the real estate to Marion L. Swan, by deed recorded April 6, 1916, giving to her a fife estate: “To have and to hold the granted premises, with all the privileges and appurtenances thereto belonging to the said Marion L. Swan for and during the term of her natural life.” On February 28, 1916, by deed recorded March 2, 1916, Marion L. Swan conveyed the premises to Mrs. Thomp [133] son, the deed stating: “This conveyance is made as a gift and is without consideration.” The plaintiff called the defendant Percy G. Wheeler who testified he made no deed of the real estate on or before May 1, 1922, to the plaintiff. In the Superior Court a verdict was directed for the plaintiff. The case is before us on the defendants’ exceptions. Under the deed of December 3,1915, from Mrs. Thompson to her daughter, the grantee took a life estate with the power of sale “if need be.” On her death the premises were to belong to the town of Orange. Marion L. Swan could convey the premises only in case of need. She had no power under the deed to make a gift of the premises, and as her deed to her mother was a gift, it was not according to the terms of the power and the town of Orange on the death of Marion L. Swan became the owner. Chase v. Ladd, 153 Mass. 126. See Ladd v. Chase, 155 Mass. 417, 422; Merchants Trust Co. v. Russell, 260 Mass. 162, 164. The grantor reserved to herself no power of revocation in this deed of December 3, 1915. A voluntary. settlement, without reservation of the power to revoke, when fully executed, cannot be revoked if it is made without fraud, mistake, or mental unsoundness. Sands v. Old Colony Trust Co. 195 Mass. 575, 577, and cases cited. When the contract between the plaintiff and defendants was executed, as well as at the time fixed for performance, the defendants were not the owners of the real estate and could not convey it with “a good and clear title . . . free from all incumbrances.” The town of Orange had the fee. As the defendants could not perform, the plaintiff could recover the deposit on a count for money had and received.Burk v. Schreiber, 183 Mass. 35. Chatalian v. Di Fusco, 244 Mass. 513. The plaintiff was not obliged to tender performance. The ■ defendants could not carry out the contract and the plaintiff had the right to rescind. Burk v. Schreiber, supra. In Smith v. Greene, 197 Mass. 16, and similar cases relied on by the defendants, there was nothing to show that the owner of the land would not have been ready to perform when the time of performance arrived. [134] There was no error in refusing the defendants’ requests. As there was no issue of fact for the consideration of the jury, the trial judge properly directed a verdict for the plaintiff. Winsor v. Ulin, 223 Mass. 282, 284. We discover no error in the conduct of the trial. Burk v. Schreiber, supra. Katzeff v. Goldman, 248 Mass. 365. Exceptions overruled.