Harrington v. Barnes

64 Mass. 106

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1852
• Status: Published

Opinion

Metcalf, J.

The condition of the bond in suit is most unskilfully framed; but the court are of opinion that its legal meaning and effect are such, that, upon the facts shown in evidence, and agreed to at the trial, the plaintiff can maintain this action.

The first part of the condition is, that the defendant, ids heirs and assigns, shall convey certain land. The words “ heiis and assigns ” are here inoperative; because a subsequent part of the condition is, that the land shall be conveyed by a deed executed and acknowledged by the defendant himself. The condition also is, that the defendant shall convey the land to the plaintiff himself, and not that he shall, on any contingency, convey it to any one else. The words are “ shall convey and quitclaim to the said David B. Harrington, his heirs and assigns forever.” These last words do not legally mean that the defendant shall convey the land to the plaintiff, or to his heirs or assigns, but that he shall convey to the plaintiff an estate in fee-simple ; those words in a deed being necessary to convey such an estate. The condition furthermore is, that such conveyance shall be made by the defendant to the plaintiff, “ provided the said” plaintiff, “ his heirs and assigns, shall first pay to said ” defendant, “ his heirs, executors, administrators or assigns, the sum of $300.” What are the meaning and effect of this proviso ? The case must turn on this question.

Now as the explicit terms of the condition are, that the conveyance shall be made by the defendant himself to the plaintiff himself, and no provision is made for the contingency of either party’s death, but all questions that might arise on the happening of such contingency are left to be decided solely by the rales of law; it is manifest that the words “ heirs, executors and administrators,” inserted in this proviso, can have no operation, and must be treated as insensible surplusage. It is equally manifest that the word “ assigns ” is also inoperative, unless it means something different from heirs, executors or administrators. But the plaintiff’s assigns may mean his assignee of the bond, and it can have no other operative meaning. We must, therefore, hold that it means him. Fol it is an established rule, in the construction of agreements, that some effect is to be given to every word, if it can be done consistently with the rules of law, and the intention of the parties. The defendant’s assigns must mean his assignee of the land, or the word is inoperative. It is unnecessary, however, to decide whether it can have any operation or not.

The payment, then, by the legal construction of the condition of the bond, was to be made by the plaintiff, or, by the person to whom he should assign the bond, and was to be made to the defendant alone, if no operative meaning can be given to the words “ his assigns,” or, to his assignee of the land, if such is the meaning of those words. And as the case finds that Barker was the plaintiff’s assignee of the bond, and that he seasonably tendered the money to the defendant, the terms of the condition respecting payment have been complied with.

We need not decide whether any tender was necessary after the defendant conveyed the land to Goffe. A deed given by the defendant, after that conveyance, would not have been a performance of the condition of the bond, unless he had first procured a conveyance of the land to himself, from Cutting. For the condition was, not merely that the defendant should execute and acknowledge a quitclaim deed of the land, but that he should “ convey ” it by such a deed.

It is hardly necessary to add, that although Barker is the assignee of the bond, yet an action on it can be maintained only in the name of the plaintiff. New trial granted.