Dana v. Wentworth

111 Mass. 291

• Court: Massachusetts Supreme Judicial Court
• Decided: January 15, 1873
• Status: Published

Opinion

Gbay, J.

The clause in the deed from the plaintiff to Nudd, restricting building on the land thereby conveyed, is in the form of a condition; as a condition, it can only be taken advantage of by the grantor, and at common law; and this bill is not framed to enforce a forfeiture for breach of condition.

The plaintiff does not show that since that conveyance she is the owner of any land which may be affected by a disregard of the restriction. She is not therefore entitled to ask a court of equity to enforce the restriction for her own benefit.

Nor can the bill be maintained, even by treating it, as it was treated by both parties at the argument, as brought against the defendant for the benefit of other parties, who like himself derived their titles from Nudd.

There is nothing in the case to show that the restriction in the deed from the plaintiff to Nudd was part of a general plan for the benefit of the land thereby granted and other estates on the same street, or was inserted in the plaintiff’s deed for the benefit of the grantee or his assigns, or was repeated in any grant or covenant executed by him or them or either of them. Under these circumstances, a purchaser from Nudd of part of the land so granted to him has no more right in equity than at law to enforce the restriction against the purchaser of another part of the same land. Jewell v. Lee, 14 Allen, 145. Keates v. Lyon, L. R. 4 Ch. 218. The judgment of the chancellor of New Jersey in Winfield v. Henning, 6 C. E. Green, 188, is inconsistent with the decisions in this Commonwealth and in England.

It is therefore unnecessary to consider the effect of the release made by the plaintiff to Mrs. Niles, for, independently of that release, the Bill must he dismissed.