Goodwin v. Gilbert

9 Mass. 510

• Court: Massachusetts Supreme Judicial Court
• Decided: March 15, 1813
• Status: Published

Opinion

* By the Court.

The principal question in this case is, whether, if one grant lands to another by deed poll, with a reservation of certain duties to be performed by the grantee for the benefit of the grantor, this latter may have assumpsit against the grantee upon his non-performance? It has long been settled that an action lies for rent reserved upon a deed poll. The reason of the principle has a general application; and we are all satisfied that, as a general rule, where land is conveyed by deed poll, and the grantee enters under the deed, certain duties being reserved to be performed, as no action lies against the grantee on the deed, the grantor may maintain assumpsit for the non-performance of the duties reserved. '

It was objected that this was an agreement concerning an inter est in lands, and that, no memorandum being signed by the party, the case was within the statute of frauds. But where the law raises the promise, it is not within the statute,

(a) The same answer may be made to the objection that it was a promise to pay the debt of another, and not in writing.

The verdict is to be set aside, and a verdict entered for the plaintiffs for the sum mentioned in the judge’s report of the trial, on which judgment is rendered.

[Jackson, ex Dem. Benson, vs. Matsdorf, 11 Johns. 91.—Jackson, ex Dem. Whitlock, vs. Mills, 13 Johns. 463.—Jackson, ex Dem. Seelye, vs. Morse, 16 Johns. 197. — Allen vs. Pryor, 3 Marsh. 306.— Hills vs. Elliott, 12 Mass. Rep. 26. — Fletcher vs. M'Farlane, 12 Mass. Rep. 46. — But see Black vs. Black, 4 Pick. 234. — Boyd vs. Stone, 11 Mass. Rep. 342 — Quære, whether covenant can be brought, in any case, against a person who has not become a party to the deed by signing and sealing ? Platt, 10 — 18. Vivian vs Arthur, 1 B. & Cr. 410. — Seddon vs. Senate, 13 East, 63. — Harper vs. Burgh, 2 Leo. 306.—4 Cruise, 393, 3d ed. — Com. Dig. Cov. A. I,— Vin. Abr. Con. (I. a. 2.) — Dyer, 136, pl. 66. — 2 Rolle, Rep. 63. — Buls. 164. 1 Rolle, Rep. 359 — 63. — Co. Lit. 230, note (1), by Thomas, vol. ii. 229. — Burnett vs. Lynch, 5 B. & Cr. 596 —Lock vs. Wright, 571. —Ed.]