Morse v. Inhabitants of Wellesley

30 N.E. 77, 156 Mass. 95, 1892 Mass. LEXIS 144

Opinion

Field, C. J.

The water privilege, the right of way, and the right to take the grass and fruit, which the plaintiff claims that the defendant promised to give him as a part of the consideration of his deed, are each and all an interest in the land granted within the meaning of the statute of frauds, and the contract declared on is inconsistent with the deed.

The plaintiff cannot avoid the effect of the statute of frauds by proving that an oral agreement to convey to him interests in land was a part of the consideration of the deed w.hich he gave of the land. The agreement set up, if a part of the consideration, must have been made before or at the time of the delivery of the deed, and would, if allowed to have effect, cut down the grant, and impair the covenants contained in the deed. The rights should have been reserved in the deed, if they were a part of the bargain. Flynn v. Bourneuf, 143 Mass. 277. Simanovich v. Wood, 145 Mass. 180. Exceptions overruled.