(147 N.E.) 3. Estoppel 93(1)-Conditional seller of [ Exceptions from Superior Court, Suffolk bowling alleys to lessees held not negligent County; Winfred H. Whiting, Judge. for failure to ascertain terms of lease. Conditional seller of bowling alleys to lessees, with knowledge of lessor, held not negligent, in that it failed to ascertain provisions of lease under which lessor subsequently claimed title to alleys so installed. 4. Fixtures 33-Conditional seller of bowling alleys to lessee held not precluded from removing them, though no demand was made during term of lease. Bowling alleys, conditionally sold to lessee, held not to become part of realty, regardless of terms of sale, on theory that purchasers could give only such rights as they as tenants had, namely, right to remove during term, and that therefore right of removal was lost, because no demand was made during existence of term. 5. Chattel mortgages 6-Transaction held sale of bowling alleys on condition that purchaser pay purchase-money notes, and not chattel mortgage. Transaction between purchaser and seller of bowling alleys held a sale on condition that purchaser would pay purchase-money notes at maturity, and not chattel mortgage. 6. Chattel mortgages 6, 152-Conditional vendor's transfer of notes and conditional sales agreement as security for debt held chattel mortgage; chattel mortgage held void, except as between parties, for want of recording. Conditional vendor's transfer of purchasemoney notes and conditional sales agreement as security for payment of debt owed by it held mortgage, which, being unrecorded, was under G. L. c. 255, § 1, valid as between the parties, but void as to persons thereafter deriving title to mortgaged chattels under or through mortgagor. 7. Chattel mortgages 8-Transfer of purchase-money notes given by conditional purchaser of chattel held not mortgage of unassigned conditional sale agreement. Action of tort by the J. H. Gerlach Company, Inc., assignee for the benefit of John P. Magann, against Frank A. Noyes, for conversion of certain bowling alleys, conditionally sold to defendant's lessees, wherein de-' fendant claimed title under terms of his lease. On defendant's exceptions after verdict for plaintiff. Exceptions overruled. Wm. Flaherty and M. C. Kelleher, both of Boston, for plaintiff. W. P. Murray, of Boston, for defendant. PIERCE, J. This is an action for the al leged conversion of certain bowling, alleys. Upon substantially the same evidence, the case was before this court in December, 1921, and is reported in 241 Mass. 69, 124 N. E. 612. At the conclusion of the evidence in the second trial, the defendant moved that a verdict be directed in his favor; and he excepted to the denial of the motion and to the refusal to give certain requests for rulings of law. The jury found for the plaintiff. The facts warranted by the reported evidence are that in the summer of 1915 the defendant was engaged in constructing a building, suitable for use as a place for a moving picture theater, with a basement adapted for a bowling alley business. July 16, 1915, he leased to Peterson and Steele a certain part of the building then in process of construction, for a term of five years beginning October 1, 1915. The lease contained the provision: "It is agreed between the parties hereto that any and all alleys which may be constructed by or for the party of the second part [Peterson and Steele] in and upon said premises shall be deemed to be and be affixed to the realty and shall not be removed therefrom except upon the written order of the lessor." In September, 1915, without knowledge that the lease had been signed or of the terms Transfer by assignee of purchase-money of the lease, a representative of J. P. Manotes given by conditional purchaser of bowling alleys as security for debt of assignee held gann & Co., sent by Magann, had a talk not to create a legal mortgage of unassigned with the defendant, Noyes, with reference agreement of conditional sale, or of property to Steele and Peterson and "the security on which bill of sale covered, legal title to which remained in assignee of original vendor. 8. Chattel mortgages 177(1) Action against lessor for conversion of bowling alleys conditionally sold lessee held maintainable by mortgagee of seller's interest. Action against lessor for conversion of bowling alleys conditionally sold to lessee held maintainable in name of assignee of vendor, who held legal title as mortgagee, though vendor had been reinvested with title to purchasemoney notes by his payment of them while held by transferee of original assignee or mortgagee. the goods" which J. P. Magann & Co. later sold to Steele and Peterson. At this conversation the defendant asked the representative "about the security on the goods," and the agent replied: "We always sold on a lease or a conditional sale," that is, "that in making the property belonging to Magann & Co. until it was paid for in full." There is no evidence of what the defendant said in reply, if he said anything, but there was evidence that he said nothing about having executed a lease of the premises, and For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes specifically nothing about a provision in a lease to Steele and Peterson which made the bowling alleys a part of his real estate. December 6, 1915, an agreement of conditional sale of the bowling alleys in question, which were installed in the premises of the defendant in January or February, 1916, was executed between J. P. Magann & Co. and Steele and Peterson, the material parts pertinent to this action reading, as follows: It "It is furthermore agreed that the personal property supplied by J. Magann & Co., under this contract shall be placed in the premises described in said specifications and are not to be removed therefrom without the consent in writing of J. Magann & Co., until all notes issued hereunder are fully paid, and it is agreed that said personal property shall not be so attached or fixed to said building as to become part of the realty and under no circumstances shall they be deemed so attached. is understood and agreed that the title to said personal property shall remain in J. Magann & Co., until said cash and notes are paid over and said mortgage recorded. And in case no mortgage has been agreed upon then the title and ownership shall remain vested in said J. Magann & Co., until all notes outstanding on said contract are paid in full with interest, and in case of failure to pay any of said notes when due or cash installments in case such have been agreed upon then all remaining notes or cash installments outstanding shall become due and payable, and J. Magann & Co. shall be entitled to take immediate possession of said property and may remove it from said premises without legal process or other formality, and all payments which may have been made shall be considered as rental for the use of said property while in the possession of said Steele and Peterson or his heirs or assigns, and said Steele and Peterson and his heirs or assigns hereby waive all rights if any they may have under lien laws or other exemptions and of any rights whatever which they may have under such laws." The Medford Trust Company did not return the collateral agreement to J. P. Magann & Co. with the notes, when paid by that company, and the agreement could not be found at the time of the trial of this action. The agreement dated December 6, 1915, not being recorded, on the advice of their attorney, Steele and Peterson and J. P. Magann & Co., in May, 1916, signed, executed and had recorded a confirmatory agreement of conditional sale. Steele and Peterson defaulted in payment of the notes given with the conditional sale agreement in the spring of 1916. J. P. Magann & Co. in the fall of 1916, speaking through Mr. Magann, told the defendant in substance that it had a conditional sale of the bowling alleys and that it wanted its money. The defendant, Noyes, in substance replied that he knew J. P. Magann & Co. had a lease of the alleys; that he would not pay any money as the "alleys belonged to him" and "that he would not give [Magann] the alleys nor the money." We shall consider the issues argued by the defendant in his brief in the order of their presentment therein. The contention numbered 1 is: "That the elements necessary to create an estoppel were not sufficiently established by the evidence as a matter of law, in that it did not appear that there was reliance upon the silence of the defendant prior to the installation of the alleys, and that the evidence indicated a want of due care on the part of the installer of the alleys in not discovering the provisions of the lease." [1] This contention does not question that the jury were warranted on the evidence in finding that the defendant had knowledge that "the Magann Company was installing the alleys under a conditional bill of sale, before they were installed"; nor does it involve a denial of the right of the jury to The notes referred to in the agreement of find on the evidence that the silence of the conditional sale were executed on February defendant, when told that J. P. Magann & 5, 1916, when the bowling alleys were in Co. was selling the alleys on the conditional place, in a completed condition, on the prem- sale plan, was not sufficient to lead that comises of the defendant. February 23, 1916, pany to believe it could hold the alleys as Magann, for the firm, indorsed on the back its own until they were paid for. It is of of the agreement of conditional sale, "We course elementary that mere passivity, mere hereby assign the within notes to the J. H. standing by in silence in the hearing of a Gerlach Company." These notes with the declaration of fact, will not work an estopagreement were then given to J. H. Gerlach pel to deny such fact, unless the hearer has Company as "security for material furnished a duty to speak and has reasonable ground on this particular job." J. H. Gerlach Com- to anticipate that the declarant, lulled into pany endorsed the notes, and delivered the security by a faith in the existence of the deSteele and Peterson agreement, without as-clared fact which the hearer knows consignment, to the Medford Trust Company, as cerns his interest and knows it is not true, collateral to notes given by it to that trust will make some change in position. The company. The collateral notes were not paid question then is, Did J. P. Magann & Co. by Steele and Peterson as they became due, change its position? Did it sell the bowling and were paid by J. P. Magann & Co. as alleys to Steele and Peterson in the belief indorser of them; and when paid to the that the defendant would interpose no legal Medford Trust Company were returned to obstacle to its right to remove the alleys J. P. Magann & Co. not stamped "Paid." | should the terms of the conditional sale (147 N.E.) agreement be broken, and unperformed? In this regard it must be assumed that the jury weighed all the pertinent evidence and applied thereto the law given them by the judge: "That in order to work an estoppel it must appear that one has been induced by the conduct of another to do something different from what otherwise would have been done and which has resulted to his harm, and that the other knew or had reasonable cause to know that such consequences might follow." [2] The finding for the plaintiff on the whole case involved and required the subsidiary findings that in the circumstances the defendant had a duty to speak, was silent, and that J. P. Magann & Co. acted on that silence to its harm. The direct evidence, with such inferences as the jury could rationally draw therefrom, clearly warranted a finding that J. P. Magann & Co. relied upon the report made to Magann by its agent, that the defendant had remained silent when informed of J. P. Magann & Co.'s intention to erect alleys on the defendant's premises under a contract of conditional sale. [3] As regards the contention numbered 2, we find nothing in the evidence to justify the argument of the defendant that J. P. Magann & Co. was careless in not ascertaining there was a written lease of the premises to Steele and Peterson, and negligence in not ascertain ing the provisions of such lease. The silence of the defendant, in the circumstances, was in effect a misrepresentation of fact, which may have caused J. P. Magann & Co. to desist from inquiring and neglect its means of information. David v. Park, 103 Mass. 501. [4] There is nothing in the third contention: "That even though the title to the bowling al notes given by the tenants to the Magann Company and by them transferred to the Gerlach Company as collateral security for a debt, and that the Gerlach Company in turn transferred such notes either with or without the contract of conditional sale which secured them, there being evidence both ways on this point, to the Medford Trust Company also as collateral for its obligation to that bank, the defendant insisting that, by reason of these transactions, no cause of action could arise in favor of the Gerlach Company or be enforced by it even if such contract of conditional sale had not passed to the Medford Trust Company, such transaction, as the defendant contends, being a mortgage which was not recorded, and therefore invalid except as to the parties thereto, and also that whatever rights existed by reason of the contract of conditional sale had passed to the Medford Trust Company." [5, 6] As between Steele and Peterson and J. P. Magann & Co. the conditional bill of sale was not a mortgage, but was an agreement to sell upon condition that the purchasers should pay their notes at maturity. Harkness v. Russell, 118 U. S. 663, 7 S. Ct. 51, 30 L. Ed. 285. As between J. P. Magann & Co. and J. H. Gerlach Company, the transfer of the notes of Steele and Peterson and of the agreement of conditional sale as security for the payment of a debt of J. P. Magann & Co., operated as a mortgage between the parties, but was void as to all persons thereafter deriving title to the mortgaged chattels under or through J. P. Magann & Co. G. L. c. 255, § 1; Worcester Morris Plan Co. v. Mader, 236 Mass. 435, 128 N. E. 777; Pratt v. Harlow, 16 Gray, 379; Brackett v. Bullard, 12 Metc. 308; Arnold v. Chandler Motors of New England, 244 Mass. 210, 138 N. E. 574. [7] The transfer of the collateral notes to the Medford Trust Company by J. H. Gerleys was reserved to Magann & Co. by the contracts of conditional sale, and even though the lach Company, as security for its debt to defendant Noyes is estopped to assert the pro- the trust company, did not create a legal visions of his lease that they became real es- mortgage of the unassigned agreement of contate upon annexation, nevertheless, disregard-ditional sale or of the property which the bill ing this provision, Magann retained under his of sale covered, the legal title thereto recontract of conditional sale only such rights maining in J. H. Gerlach Company. Marsh as the tenants could grant to him, namely, the right that the bowling alleys should constitute Bloomberg, 225 Mass. 491, 114 N. E. 827, L. Woodbury, 1 Metc. 436; Freedman v. tenant's fixtures, removable during the term; that therefore the rights of the Magann Com-R. A. 1917C, 628. pany were subject to a termination of the tenant's holdings prior to their removal," and were lost because no demand was made during the existence of the term. The right to retain title to personal property sold on a conditional bill of sale, which is or may become annexed to real estate, depends on the conditions which exist between the parties when the contract is made, and not upon charges which come into existence before performance. "The remaining exceptions relate to the title of the plaintiff, it appearing that the contract of conditional sale was security for certain [8] The defendant in this action has derived no title or interest in the chattels mortgaged to J. H. Gerlach Company, by, through or under J. P. Magann & Co.; and he could acquire no adverse title to J. P. Magann & Co. under the provisions of his lease to Steele and Peterson. The title to the notes of Steele and Peterson revested in J. P. Magann & Co. before demand was made for the alleys or their value. The legal title to the alleys with the right of possession is in J. H. Gerlach Company who hold the same as trustee for J. P. Magann & Co. After the demand of Magann for the return of the bowling alleys or their value, no reason is perceived why, on the facts of this case, this BENNETT et al. v. SHEINWALD. (Supreme Judicial Court of Massachusetts. Suffolk. March 19, 1925.) 1. Vendor and purchaser 134(4)-Covenant for party wall held independent of restrictions to which sale was subject. Where lot was sold free from incumbrances, except "C. avenue restrictions of record," provision of earlier deed that foundations, stonework, walls and fences on boundary between lots should be placed one-half part on each lot held not included in such restriction, but independent thereof. 2. Vendor and purchaser 315(1)-To recover for purchaser's breach, vendors must affirmatively show tender of deed conforming to contract. Vendors, to recover for purchaser's breach, must show affirmatively that they tendered deed to purchaser which conveyed clear title to premises free from incumbrance, subject only to restrictions specified in their agreement. 3. Covenants 69 (2)-Vendor and purchaser 134(4)-Reservation in deed and stipulation to build party wall held covenant running with the land, and an "incumbrance." The contract on behalf of the plaintiffs was signed by Stephen H. Bennett, individually, and also as "agent for the heirs." Margaret D. Bennett, wife of Stephen, and mother of the other plaintiffs, at her decease in 1915 was the owner of the real estate in question. She left a will which was duly probated and allowed; her husband waived its provisions and received his statutory share in his wife's estate. It is contended by the defendant at the outset that the contract is invalid, for the reason that it purports to have been made between the surviving husband and "heirs and devisees of Margaret D. Bennett" and the defendant; also, that the agreement is invalid for the reason that the plaintiffs, with the excep tion of Stephen H. Bennett, are not individually named as contracting parties, and that it does not set forth who the "heirs and devisees" are; and, finally, that the agreement does not comply with the statute of frauds. It is apparent from the record that, although the motion for a directed verdict filed by the defendant was allowed, the only real issue between the parties was, whether the premises to be conveyed were free from incumReport from Superior Court, Suffolk brances except the restriction specifically County; Robert F. Raymond, Judge. Provision in deed in chain of title for erec tion and use of party walls, with right reserved to grantor to enter premises to remove or alter any building or portion thereof erected contrary to stipulation, held a covenant running with the land and an "incumbrance," within contract for sale free from incumbrances. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Incumbrance (on Title).] Action of contract by Stephen H. Bennett and others against William Sheinwald to recover for alleged breach of land sale contract. Verdict was directed for defendant, and case reported. Judgment for defendant. J. Codman and J. T. Wheelwright, both of Boston, for plaintiffs. Inamed. The report recites that: The "defendant refused to accept the deed on the ground then stated that it would not convey to his wife a title 'free from incumbrances except Commonwealth avenue restrictions of record and city of Boston taxes assessed as of April 1, 1922.' * * *” It is sufficient to say that no other issue M. M. Horblit and J. Wasserman, both of than that stated is before this court. Boston, for defendant. CROSBY, J. This is an action of contract for the recovery of damages for an alleged breach of a written agreement, under which the plaintiffs were to sell and the defendant [1] It appears that at the trial, by agreement of the parties, certain deeds and a party-wall agreement were admitted in evidence which showed a complete chain of title to the premises in question from February 20, 1879, to April 16, 1901. It was admitted by For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (147 N.E.) the plaintiffs that Commonwealth avenue is and since 1896 has been a public parkway; that in pursuance of the statutes the park commissioners duly restricted the height of buildings bordering on the avenue to 70 feet, and established a "set-back restriction" of 25 feet some years before 1922; and that these restrictions were a matter of public record in 1922 and are still in force. These two restrictions are the only ones which are shown by the record to affect property bordering on this avenue. The earliest deed above referred to is that of Braman and others, trustees, to Morse, dated February 20, 1879, and duly recorded and includes the land in question. It contains the following provision: "All pile foundations, stonework, walls, and fences on the boundary between this lot and either of the adjoining lots shall be placed one-half part on each of said lots, and whenever the owner of either of said lots shall use and enjoy any part of such foundation, stonework, walls and fences as built by another, such owner shall pay for such part of such foundation, stonework, walls and fences the actual value of one-half part thereof to the owners thereof." The foregoing provisions relating to party walls is referred to in subsequent deeds and is still in full force and effect. This provision is incorporated in the various deeds in the chain of title of the plaintiff; it cannot be held to be included in the term "Commonwealth avenue restrictions" as used in the agreement between the parties in the present case, but is to be considered as a covenant wholly independent thereof. It is the contention of the plaintiffs that said party-wall agreement does not constitute an incumbrance on the lot agreed to be sold, as there was no evidence to show that it diminished the value of the lot, and has been fully executed and completed. The plaintiffs also contend that there is no covenant to rebuild if the walls are destroyed and that such provision is made for the benefit of lots of adjoining owners. The question, and the only question, we are called upon to decide, is whether the provision relating to party walls is an incumbrance on the lot agreed to be conveyed. ly disclose whether either of these walls has that: Un The grantors "reserve the right to enter upon the premises and at the expense of the party at fault, to remove or alter, in conformity with the above stipulations any building or portion thereof which may be erected on the premises by the said grantee or her representatives or assigns in a manner or to a use contrary to the above stipulations." a This reservation makes it obvious that the obligation to build, and the right of entry to remove, are covenants which run with the land. If we assume, although not so expressly stated in the record, that because the agreement includes conveyance of the buildings on the lot the party walls have been entirely constructed, the same result must be reached, namely, that the provision in question creates a covenant which passes to heirs and subsequent assignees. It cannot be constructed as personal and separate from the land. It was said in Savage v. Mason, 3 Cush. 500, 505: "It has direct and immediate reference to the land; it relates to the mode of occupying and enjoying the land; it is beneficial to the owner as owner, and to no other person; it is in truth inherent in and attached to the land, and necessarily goes with the land into the hands of the heir or assignee." The deed under which Mrs. Bennett acquired title was subject to the agreement contained in the Braman deed which, as we have already said, binds the heirs and assigns of the respective parties. It creates a [2, 3] The plaintiffs, to recover, must show mutual covenant which runs with each lot affirmatively that they tendered a deed of and after the walls had been erected and the premises to the defendant which convey- paid for by the parties respectively, each ed a "clear title thereto free from incum- was the owner in severalty of the part on brances," subject only to the restrictions spe- his land, subject to the easement in favor of cifically referred to in the agreement. The the other party in the wall and to the land lot which they agreed to convey had a front- upon which it stands. Berry v. Godfrey, 198 age of 25 feet on the northerly side of Com- Mass. 228, 84 N. E. 304, 16 L. R. A. (N. S.) monwealth avenue and is one-half of the 434. The easement of support afforded by a land originally conveyed in 1879 by the wall of this nature is not limited to the plaintiffs' predecessors in title, Braman and building originally erected, but includes any others, to Morse. The easterly and wester- new structure that may be erected and suply boundary walls of the lot in question are ported by it in the same place; and if the subject to the party-wall provision in the wall becomes weakened or destroyed either Braman deed. The record does not express-owner may repair or rebuild it or change its |