Keening v. Ayling

126 Mass. 404, 1879 Mass. LEXIS 278

• Court: Massachusetts Supreme Judicial Court
• Decided: March 27, 1879
• Status: Published

Opinion

Gray, C. J.

The deed itself shows that the front of the lot is on Newton Street, and the rear on the passageway at the opposite end of the lot, and that buildings conforming to the conditions of the deed were already standing on the land; and there is nothing in the report before us to show that, as applied to the facts of this case, there is any ambiguity as to what proportion is to be deemed “the rear of the said lot,” upon which the fourth condition requires that “no dwelling-house or other building, except the necessary out-buildings, shall be erected or placed.”

We can have no doubt that the words “for the term of twenty years from the first day of April, 1859,” at the end of the fifth condition, apply only to the mode of use and occupation, and not to the height of buildings or the materials of outer walls.

According to the agreement of the parties and the terms of the report, a decree is to be entered for specific performance, and for the damages assessed by the master, except those for the existence of the second condition, all claim for which was waived by the plaintiff at the argument.

Decree for the plaintiff accordingly.