(147 N.E.) New Haven & Hartford Railroad, 221 Mass., 85 N. E. 188; Commonwealth v. McCabe, 163 304, 306, 108 N. E. 920. Mass. 98, 103, 39 N. E. 777; Commonwealth v. Finnerty, 148 Mass. 162, 166, 19 N. E. 215. Exceptions overruled. [5] It is a well-established rule in both civil and criminal cases that evidence of what a deceased person testified to at a former trial is competent in any subsequent trial of the same issue, between the same parties or their privies, provided the former testimony can be substantially reproduced in all material particulars. Ibanez v. Win ston, 222 Mass. 129, 109 N. E. 814; A. T. Stearns Lumber Co. v. Howlett, 239 Mass. 59. 61, 131 N. E. 217. The record statement of the examination of the witness Pennycuick by the judge discloses a declaration by the witness that he could remember the questions put to, and the answers given by, O'Mealey; and that he could give what he believed were the "exact words." The evidence of the witness was received after an interval devoted to another line of inquiry. When resumed the witness was further ex amined by the judge, the prosecutor, and the defendant's attorney, as to the extent and accuracy of his recollection of the testimony of O'Mealey upon direct and cross-examination, and testified in relation thereto that the testimony he had given was in substance all the testimony O'Mealey had given in the lower court. In this state of the evidence we think the judge when he admitted the testimony of Pennycuick must be held to have found that the witness could reproduce the testimony of O'Mealey in every substantial, material, particular, and that he made his ruling upon the fact so found. See in this connection Newton Centre Trust Co. v. Stuart, 208 Mass. 221, 225, 94 N. E. 454; Boston Elevated Railway, 237 Mass. 245, 247, 129 N. E. 355. There was no error of law in admitting this testimony as substantially a reproduction of the material testimony of O'Mealey in the court below. Foster v. Mackay, supra; Gorton v. Hadsell, 9 Cush. 511; Commonwealth v. Richards, 18 Pick. 434, 29 Am. Dec. 608; Yale v. Comstock, 112 Mass. 267; Costigan v. Lunt, 127 Mass. 354; Jaquith v. Morrill, 204 Mass. 181, 189, 190, 90 N. E. 556; Ibanez v. Winston, supra; Commonwealth v. Caruso (Mass.) 146 N. E. 664. Horan V. SANDERSON, J. Ellen Farrell, the mother of the plaintiffs and defendant, executed a deed dated August 14, 1905, conveying to the defendant, as trustee, two parcels of land, one in Cambridge and one in Boston. The terms of the trust as stated in the deed her life the net rents and profits and at her were, in part, to pay to Ellen Farrell during death to convey two-fifths of the estate to the defendant, two-fifths to the plaintiff Theresa E. Daly, and one-fifth to the plaintiff Anna M. Moran; with a provision that $300 should be paid out of the estate to her son John P. Farrell, and $1 to her son James F. Farrell. The grantee was given a power of sale and in October, 1910, sold the Cambridge real estate. In 1912 the grantor executed and caused to be recorded in the registry of deeds a paper purporting to revoke the deed of trust to the defendant, and stating that the deed was made to evade the law as to wills. At about the same time she made a will, and she died February 2, 1923. [6, 7] The defendant was not harmed by the submission to the jury of the question The plaintiffs bring this bill to compel the of fact, with proper instructions, which the defendant to convey to them their respective law required to be decided by the court as interests in the remaining real estate, in acpreliminary to the admission of evidence. cordance with the terms of the deed of trust. Commonwealth v. Tucker, 189 Mass. 457, The defendant alleges in her answer that 475, 76 N. E. 127, 7 L. R. A. (N. S.) 1056. the deed to her was procured by the misOn the evidence there was no error in leaving representation of Joseph B. Moran, and that to the jury to determine whether the defend- it was afterwards disaffirmed by Ellen Farant could and should have produced witness-rell. The judge who heard the case found es whose testimony would prove an actual that there were no misrepresentations made, purchase of the stocks, or offered an expla- but that on the contrary the grantor executnation of incriminating circumstances. Com-ed the deed in full knowledge and undermonwealth v. Johnson, 199 Mass. 55, 62, 63, standing of its contents and that the deed For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes carried out her express intention to protect | "for his services of all his real estate in Bosherself and her daughters from a possible ton," which was valued by the intestate at undue generosity on her part to a son; that $12,000; and that the plaintiff, in considthe deed does not on its face indicate a pur-eration of this promise, did remain with the pose to evade the testamentary laws of the intestate and care for him during his lifestate, as claimed by the mother in her written time. At the close of the evidence the plaindisaffirmation, and was not so intended by tiff waived the first and third counts of the her; and that the "disaffirmance" without declaration. the consent of the beneficiaries, which was not given, was ineffective and the defendant must account for such of the real estate conveyed to her, as was claimed by the plaintiff at the hearing. [his] room." It appeared that the intestate lived with the plaintiff in the year 1914 and remained with him until some time in the year 1917. The plaintiff, according to his testimony, was paid "$3 a week for [his] board and $2 a month for In 'October, 1919, or 1920 Carey returned to the plaintiff's house and lived with him until his death. During this period Carey paid the plaintiff $3.50 a week. It was in evidence that, during a part of the time from 1914 till the death of Carey, the plaintiff rendered services in nursing and caring for him. The plaintiff testified that in 1914 Carey asked if he could live with him, and the plaintiff said he would ask his wife; that he later informed Carey that Mrs. Hurl would not object to his coming to live with them and Carey said, "Now that I am going to make my home with you I am going to deed my property to you"; that at another time. when Carey was not living with the plaintiff, he said in the presence of his lawyer, "I want you to deed my property to him [the plaintiff]." He further testified, in response to the question "Why did you do all this work for him * *?" "Why, we had an agreement back in 1914." He was then asked, "And it was because of that agreement that you gave him all this attenThat tion?" and he answered "Yes, sir. agreement was brought up four times, three times in the presence of others and once when Report from Superior Court, Suffolk Coun- he and I were alone at the very beginning." ty; F. J. Macleod, Judge. Action of contract by John J. Hurl against Elmer A. Merriam, administrator of David J, Carey, deceased, to recover on alleged contract for labor performed and services rendered decedent. On report, after verdict for plaintiff. Judgment for defendant. * He also testified. referring to the special E. H. Abbot, Jr., and J. J. O'Hare, both of the plaintiff. Boston, for plaintiff. There is nothing to show that the plaintiff J. W. Lowrance, of Boston, for defendant. and the intestate entered into a contract by CARROLL, J. This action in contract was in three counts, the first on the account annexed, and the second for labor performed and services rendered the intestate, David J. Carey, from May 1, 1914 to February 25, 1922. The third count was on a special contract, in effect alleging that the intestate agreed with the plaintiff, in consideration that he would nurse him (the intestate) and would care for him and provide. food and lodging during his lifetime, that he would make a conveyance by deed to the plaintiff which the intestate agreed to convey his property to the plaintiff. At most the statements of Carey were mere expressions of his intention and his appreciation of the services rendered by the plaintiff. But there was no promise to make this conveyance in consideration of the plaintiff's agreement to care for him and to provide him food and lodging; and the plaintiff made no promise to care for him and to give him a home while he lived. There was no meeting of minds. The plaintiff was paid by Carey for the board and lodging. He has failed to For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (147 N.E.) age of lots held not to create equitable easement appurtenant to remaining lots. Grantor acquired land by deed subject to restrictions to remain in force for 20 years from named date, which included provision that subject to same restrictions and grantee could rest of land shown on plan was to be conveyed redivide into lots of not less than 50-foot frontage. Held, that provision as to frontage did not create equitable easement appurtenant to remaining lots. show that, in addition to the agreement to 14. Covenants 79(1)—Provision as to frontpay for the board and lodging, there was also a promise by Carey to convey the real estate in consideration of the plaintiff's care, assented to by the plaintiff. The plaintiff relies on this special contract set out in the declaration and he has failed to prove that any such contract was made. The plaintiff cites Donovan v. Walsh, 238 Mass. 356, 130 N. E. 841, and Dixon v. Lamson, 242 Mass. 129, 136 N. E. 346, in support of his claim. In each of these cases there was a binding agreement between the parties, an offer made by the deceased, an acceptance of its terms by the plaintiff, and full performance on the plaintiff's part. The plaintiff according to his evidence nursed the intestate at times. But he relies on the special contract which has not been established. It follows that the defendant's motion for a directed verdict should have been allowed. Judgment for the defendant. HILL v. LEVINE. (Supreme Judicial Court of Massachusetts. Suffolk. May 22, 1925.) 1. Covenants 71-Restriction relating to division of land into lots of not less than 50 feet frontage held to have expired by terms of deed. Lots were conveyed to plaintiff by metes and bounds and by reference to plan, subject to restriction to remain in force for 20 years from named date, with stipulation as to kind of buildings to be erected, then followed provisions that rest of lands shown on plan was to be subject to same restrictions and grantee may redivide land into lots, but no lot shall have frontage of less than 50 feet. Held, that words "following restrictions" meant all that followed, including that relating to frontage, and restriction as to 50-foot frontage expired by terms of deed and not under G. L. c. 184, § 23. 2. Covenants 79(1)-Restriction relating to division of land into lots of not less than named frontage held not to have been for benefit of other lot owners. Where land was conveyed subject to restrictions to remain in force for 20 years, fact that restriction that rest of land shown on plan was to be conveyed subject to same restriction, and grantee could not divide land into lots having frontage of less than 50 feet, was not in group of restrictions included in other deeds, showed that it was not intended for benefit of other lot owners. 3. Covenants 79(1)—Unless right or privilege is reserved for benefit of grantor's remaining lots, grantee of other lots cannot enforce them. Unless right or privilege is reserved for benefit of remaining lots of grantor, in deed itself or from plan or situation of property, grantees of other lots cannot enforce them. 5. Vendor and purchaser 129(1)—Possibility that claimant may appear and ask court to overturn settled rule of law not such defect as to deny specific performance. Mere possibility that claimant may appear and ask court to overturn well-settled rule of law is not such defect or doubt as should lead court in its discretion to deny right to specific performance. 6. Judgment 707-Decision of Supreme Judicial Court is res judicata as to parties before it. A decision of the Supreme Judicial Court is res judicata only as to parties before it; as to others, it is authority. SANDERSON, J. The plaintiff brings this bill in equity for specific performance of an agreement in writing to sell to the defendant two parcels of land, situated in Boston, consisting of five and two lots respectively. By the terms of the agreement the plaintiff was bound to deliver to the defendant a deed conveying a good and clear title free from all incumbrances. The plaintiff acquired title "The premises are conveyed subject to the following restrictions which are to remain in For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes force for a period of twenty years from Au-, future conveyances, The statement in regust 20th, 1896." "The rest of the land shown on said plan is to be conveyed subject to the same restrictions," and "The grantee may redivide said land into lots but no lot shall have a frontage of less than fifty feet." [1] The question to be decided is whether the words last quoted raise such doubt about the plaintiff's title that the defendant should not be required to perform specifically his agreement to buy. It is the contention of the plaintiff that the restriction relating to the fifty-foot frontage expired by the terms of the deed on August 20, 1916; while the defendant contends that this restriction is not so limited and will not expire until March 19, 1928 (G. L. c. 184, § 23), or at least that there is so much doubt about the title that a decree for specific performance should not be entered. It appeared that at the date of the deed the plaintiff's grantors, as trustees, owned a large tract of land in the Dorchester district of Boston, which they had caused to be divided into lots, as shown on a recorded plan. Most of these lots had a frontage of more than fifty feet. The conveyance to the plaintiff was one of the first which they made and the first which contained two or more adjoining parcels on the same street. None of the subsequent conveyances, one of which was a mortgage of several lots, contained any provision that the lots should have a frontage of not less than fifty feet. In 1904 by a decree of the Land Court, the title to the remaining lots owned by the trustees was registered. This decree contained no reference to any requirement that they have a frontage of fifty feet. Both the mortgage and decree contained building restrictions substantially like those in the deed to the plaintiff. The trust has now been dissolved by decree of the Supreme Judicial Court. There is nothing in the terms of the deed or in the surrounding circumstances to suggest that the provision giving the grantee | the right to redivide the land into lots with a frontage of not less than fifty feet was a part of a scheme or plan for the benefit of other lots. Dana v. Wentworth, 111 Mass. 291; Tobey v. Moore, 130 Mass. 448, 451. So far as the terms of the deed are concerned, the contention that the limitation of time was not intended to apply to the frontage restriction is based on the fact that it is in a separate paragraph following the agreement to include the earlier group of restrictions in future conveyances. This separation clearly indicates that the provision as to width of the lots was not to be mentioned in gard to future conveyances was in the nature of a parenthetical clause inserted to make the distinction clear between what was and what was not to be included in future deeds, and it was not intended to exclude the frontage restriction from the limitation period. The words "following restrictions" mean all that follow, including that relating to frontage. The arrangement of the paragraphs does not becloud the title or throw doubt on the manifest meaning of the deed. Welsh, Petitioner, 175 Mass. 68, 55 N. E. 1043; Best v. Nagle, 182 Mass. 495, 65 N. E. 842. [2-4] It is contended that the defendant might be exposed to litigation to defend his title if he owned the property and that a decision in this case would not be conclusive if other lot owners should raise the question whether the frontage restriction is still in force. The provision as to frontage is in terms a personal agreement between the grantors and the grantee, and the fact that it was not in the group of restrictions to be included in other deeds tends to show that it was not intended for the benefit of other . lot owners. This conclusion is confirmed by the fact that it was not mentioned in any subsequent deed. Badger v. Boardman, 16 Gray, 559. Tobey v. Moore, supra. It is not stated in any form of words that this restriction as to frontage was imposed for the benefit of adjacent land. Lowell Institution for Savings v. Lowell, 153 Mass. 530, 27 N. E. 518. Unless it appears that a right or privilege is reserved for the benefit of the remaining lots of a grantor, in the deed itself or from a plan or from the situation of the property with reference to other land of the grantor, the grantees of other lots cannot enforce them. Badger v. Boardman, supra. Jewell v. Lee, 14 Allen, 145, 92 Am. Dec. 744; Skinner v. Shepard, 130 Mass. 180; Beals v. Case, 138 Mass. 138; Bessey v. Ollman, 242 Mass. 89, 136 N. E. 176; Allen v. Massachusetts Bonding & Ins. Co., 248 Mass. 378, 383, 143 N. E. 499, 33 A. L. R. 669. The conclusion follows, from a consideration of all the facts, that the provision in the deed as to frontage of the plaintiff's lots did not create an equitable easement appurtenant to his remaining lots. [5-7] In cases in which a defendant has been held not bound to accept title, facts have appeared showing that the property was or might be subject to adverse claims such as might reasonably be expected to expose the purchaser to controversy in order to maintain his title. First African Methodist Episcopal Society v. Brown, 147 Mass. 296, 17 N. E. 549. In the case under consideration there is no reasonable ground for litigation by owners of other lots and such arguments as they might make have been addressed to the court by the defendant. The case is one of the legal construction of a deed, (147 N.E.) with no controverted question of fact to be determined. Chesman v. Cummings, 142 Mass. 65, 7 N. E. 13. The mere possibility that a claimant may hereafter appear and ask the court to overturn a well-settled rule of law is not such a defect or doubt as ought to lead a court in its discretion to deny the plaintiff the right in equity to specific performance. Dow v. Whitney, 147 Mass. 1, 16 N. E. 722. A decision of this court is res judicata only as to the parties before it; as to others it is authority. Hunting v. Damon, 160 Mass. 441, 35 N. E. 1064. But this does not prevent the court from ordering specific performance where the question is one of construing a written instrument and there can be no reasonable doubt about its construction. Hayes v. Harmony Grove Cemetery, 108 Mass. 400; Dow v. Whitney, supra; First African Methodist Episcopal Society v. Brown, supra; Cushing v. Spalding, 164 Mass. 287, 41 N. E. 297. The decree is to be reversed, and a decree for specific performance entered with the right on the part of the plaintiff to apply to the Superior Court for the assessment of damages in accordance with the prayer in his bill. So ordered AMERICAN HIDE & LEATHER CO. v. Separate petitions by the American Hide & Leather Company against the Commonwealth of Massachusetts for abatement of portions of corporate excises for years 1921 and 1923 assessed to and paid by petitioner. On report. Demurrers to petitions sustained. C. O. Pengra, of Boston, for petitioner. A. Lincoln, Asst. Atty. Gen., for the Commonwealth. RUGG, C. J. [1-3] These are two petitions for the abatement of portions of the corporate excises for the years 1921 and 1923, assessed to and paid by the petitioner. The only question presented is whether the remedy of the petitioner for the wrongs of which it complains is by these petitions under G. L. c. 63, § 77, as amended by St. 1922, c. 520, 14, or by appeal to the appeal board under G. L. c. 63, §§ 51, 71. When the complaint is that there has been an overvaluation of that which is rightly subject to the excise relief must be sought under sections 51, 71. When the complaint is that there has been a wrongful assessment or excise upon that which is not the proper subject of taxation then relief must be sought under section 77. Boston Manuf. Co. v. Commonwealth, 144 Mass. 598, 12 N. E. 362; Attorney General v. East Boston Co., 222 Mass. 450, 111 N. E. 167; Alpha Portland Cement Co. v. ComCOM-monwealth, 248 Mass. 156, 159, 142 N. E. (Supreme Judicial Court of Massachusetts. Suffolk. May 22, 1925.) 1. Taxation 453-Relief from overvaluation must be sought by appeal to appeal board. When complaint is that there has been an overvaluation of that which is rightly subject to excise, relief must be sought under G. L. c. 63, §§ 51, 71, by appeal to the appeal board. 762. The commissioner made the assessment under these words of G. L. c. 63, § 39: "Every foreign corporation shall pay annually, with respect to the carrying on or doing of business by it within the commonwealth, an excise equal to the sum of the following, "(1) An amount equal to $5 per thousand upon the value of the corporate excess employed by it within the commonwealth. "(2) An amount equal to 22 per cent. of that part of its net income, as defined in section 30 and in this section, which is derived 2. Taxation 451-Relief from wrongful as- from business carried on within the commonsessment or excise is by petition for abate-wealth." ment. And these words of chapter 63, § 30: "When used in this section and sections 31 to 52, inclusive, the following terms shall have the following meanings: * * "4. 'Corporate excess employed within the commonwealth' by a foreign corporation, such proportion of the fair cash value of all the shares constituting the capital stock on the 1st day of April when the return called for by section 35 is due as the value of the assets, both real and personal, employed in any business within the commonwealth on that date, bears to the value of the total assets of the corporation on said date, less the value of the following." The essence of the plaintiff's complaint is that in ascertaining "the fair cash value of all the shares constituting the capital stock" Report from Supreme Judicial Court, Suf- the commissioner refused to accept the marfolk County; J. B. Carroll, Judge. ket value as shown on the stock exchange, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |