Wilson v. Black.

charge a mortgagee beyond the actual receipts, yet well sustains the conclusion to which we come, namely, that, without other proof of negligence, the estimates here offered are not sufficient to justify charging the defendant beyond the rents actually received by him. Saunders v. Frost, 5 Pick. 259. Miller v. Lincoln, 6 Gray, 556. Hubbard v. Shaw, 12 Allen, 120. Hughes v. Williams, 12 Ves. 493.

In the case at bar, it must have been contemplated by the original parties to the mortgage, that, in case of the plaintiff's default, the mortgagee, who lived in Maine, in taking possession of the estate, would be obliged to rely upon the management of agents. The executor and present defendant also resides in Maine. It does not appear that ordinary care and prudence were not exercised by him in the selection of the agent, and that reasonable exertions were not made to procure tenants by advertising and otherwise. There is no charge of bad faith; and there seems to have been no temptation to manage the estate, so far as rents were concerned, other than for the best interest of all concerned.

Upon the whole, we are of opinion that the mortgagee was held by the master to too strict liability for rents beyond those actually received, and the case is recommitted to him for revision in this respect. All other exceptions to the master's report are overruled. Decree accordingly.

JOSEPH F. WILSON VS. GEORGE N. BLACK.

A writ of entry cannot be maintained against a tenant who holds an absolute deed from the demandant's grantor, prior to the deed to the demandant, although he has given a written agreement, not under seal, to reconvey to the grantor on performance of a condition, and the condition has been performed.

WRIT OF ENTRY to recover land in Chelsea. Plea, nul disseisin. At the trial in the superior court, Lord, J., directed a verdict for the tenant on facts which appear in the opinion and the demandant alleged exceptions.

J. O. Teele, for the demandant.

R. D. Smith, for the tenant.

Dresel v. Jordan.

WELLS, J His grantor having possession, the demandant took sufficient title, under his deed, to enable him to maintain a writ of entry. But the tenant held a prior title by an absolute deed. The unsealed written agreement to reconvey did not constitute a defeasance at law. Performance of the condition of that agreement would not operate to revest the legal title in the grantor. It requires a reconveyance, and that can be enforced only in equity. Until the legal title is restored to the grantor or his assigns, the deed to the tenant gives him the better title, which must prevail at law. Cranston v. Crane, 97 Mass. Exceptions overruled.

459.

OTTO DRESEL & others vs. EBEN D. JORDAN.

If a married woman makes a written contract in her own name and her husband's, with a third party, for the sale and conveyance to him of land owned in part by her in her own right and in part by her husband, their joint execution of the deed of the land to the purchaser, before any indication of his intent to repudiate the contract, is a sufficient assent of the husband to the sale of her part of the land, and ratification by him of the contract for the sale of his part, to enable them to enforce specific performance, without evidence of her original authority to enter into the contract in his behalf.

A contract of executors, not in pursuance of their official duty, to sell and convey, with a clear and satisfactory title, land of the testator's estate, the title to which is in the heir subject to payment of the testator's debts and legacies and the charges of administration, is not necessarily void, but binds them individually; and if the terms of the contract imply that the title is to come from more than one source and may require more than one deed of conveyance, and the executors sell the land under license of the probate court, and then, to pass the title, tender to the other party a quitclaim deed of it from the purchaser at the sale, with a warranty deed from the heir, such party cannot avoid the contract, either on the ground of its original execution by the executors in their official name, or on the ground of his dissatisfaction with the form of their making title in its fulfilment.

For a vendor to enforce specific performance of the contract of sale, it is not essential that when he made the contract he should have had such title and capacity to convey the property, or such means and right to acquire them, as would have enabled him to fulfil it on his part, but is sufficient if he is able to convey the property when by the terms of the contract or the equities of the case he is required to do so in order to entitle himself to the consideration; and if time is not of the essence of the contract, nor made essential by an offer to fulfil by the purchaser and his request for a conveyance, the vendor will be allowed reasonable time and opportunity to obtain or perfect title.

The mere fact that the date of a deed in the chain of title to land is subsequent to the date of its acknowledgment will not justify a refusal to take a conveyance of the land on the ground that the title is not clear and satisfactory.

Dresel v. Jordan.

An agreement to convey land subject to an existing mortgage, the amount of which is to be assumed by the grantee in part payment of the consideration for the conveyance, is not satisfied by conveying the land subject to a condition that the grantee shall pay the mortgage debt and save the grantor harmless and indemnified in respect to it; but a waiver of any objection to accept the conveyance in this form may be inferred from acts of the grantee.

BILL IN EQUITY filed October 16, 1869, by Otto Dresel, Anna L. Dresel, his wife, and Wendell Phillips and Caleb W. Loring, the latter two as executors and trustees under the will of Louisa Loring, mother of said Anna, to enforce specific performance by the defendant of the following written agreement:

"This agreement witnesseth that Otto Dresel and Anna L. Dresel, his wife, and Wendell Phillips and Caleb W. Loring, trustees and executors under the will of Louisa Loring, of the first part, agree to sell, and Eben D. Jordan, of the second part, agrees to buy, the dwelling-house numbered 76 Chestnut Street in Boston, together with the land belonging thereto, [here followed a description of the premises by metes and bounds,] being the same premises conveyed in a deed from Edward Cabot, dated September 12, 1866, and registered with Suffolk deeds, lib. 884, fol. 260, and from George Higginson, lib. 887, fol. 12, for the sum of $22,000, payment to be made in the following manner to wit, the said Jordan to assume the note of George Higginson, secured by a mortgage on the premises, for the sum of $10,000, made September 12, 1866, to run for three years, with interest at six per cent. per annum, and to pay the balance, that is, $12,000, in cash, on the day possession of the premises is given. Possession to be given, and the papers to be passed, on or about May 20 now next ensuing. Ten days to be allowed for examination of the title; and a clear and satisfactory title to be given, or the within agreement to be null and void. “Made at Boston this 21st day of April, a. D. 1869.

Dresel v. Jordan.

The following facts appeared by the bill, answer and evidence, on which the case was reserved by the chief justice for the determination of the full court:

Edward Cabot, being seised of the premises in question, by his deed bearing date of September 12, 1866, referred to in the agreement, conveyed them to George Higginson for the consideration of $20,000. The certificate of the acknowledgment of this deed by Cabot bore date of September 5, 1866, and attested that he acknowledged the deed on that day. Higginson, on September 12, 1866, after this conveyance, mortgaged the premises back to Cabot to secure payment of $10,000 of the purchase money in three years from that date, and on October 8, 1866, conveyed them to Louisa Loring (who was a widow) and the plaintiff Anna L. Dresel, on condition that he should be saved harmless from the payment of this mortgage. On October 31, 1866, Louisa Loring and Anna L. Dresel conveyed an undivided third part of the premises to a third person, who on the same day conveyed the same to the plaintiff Otto Dresel. Louisa Loring died in 1868, leaving a will which was proved October 31, 1868, and of which the plaintiffs Phillips and Loring were on that day appointed executors. In this will, after giving certain legacies, she gave all the residue of her estate to Mrs. Dresel.

On April 21, 1869, (the date of the agreement in question,) subject to the condition in the deed from Higginson, Otto Dresel and Mrs. Dresel were thus each seised of an undivided third part of the premises, and Mrs. Dresel, as residuary devisee under her mother's will, of the other third, subject to payment of the debts, legacies and charges of administering the estate of the deceased. Otto Dresel was then absent in Europe, and Mrs. Dresel was living on the premises. The agreement was signed by all the parties, on that date, except that the name of Otto Dresel was subscribed by Mrs. Dresel, as indicated in the copy of it above set forth. It was the result of negotiations conducted with the defendant by James F. Curtis, a broker, who was employed by John G. King to sell the premises. Curtis was a witness for the plaintiffs, and on cross-examination, in

Dresel v. Jordan.

reply to a question "Whom did King represent in this matter if you know?" he testified: "King represented Mrs. Dresel and Mr. Dresel, or perhaps I had better say he represented the owners of the estate, as they all wanted to sell."

It appeared by the plaintiff Loring's testimony, that, immediately after the execution of the agreement, he, having been advised that Benjamin F. Brooks and Joshua D. Ball, attorneys, would act for the defendant in examining the title, called upon Brooks and informed him that the premises were owned, one third by Mr. Dresel, one third by Mrs. Dresel in her own right, and one third by her as residuary devisee under her mother's will and subject to a lien for the debts of the testatrix; and proposed to give, in fulfilment of the agreement, a warranty deed by Mr. and Mrs. Dresel of the whole premises; but Brooks declined to regard such a deed as a satisfactory conveyance of them, and said that Loring "had better proceed in a legal manner." Thereupon Loring prepared a warranty deed of two thirds of the premises, to be executed by Mr. and Mrs. Dresel, which was expressed that the premises were "conveyed subject to a mortgage to Edward Cabot for $10,000," describing the Higginson mortgage, "which said principal sum, with the interest due and to grow due thereon, is to be assumed and paid by said grantee and his representatives as his own debt, the same forming part of the consideration above expressed, and this deed is upon the condition that said Jordan shall pay said principal and interest of said mortgage debt, and our heirs, executors and administrators shall be forever indemnified and saved harmless from payment of said principal and interest and every part thereof;" and concerning the deed thus prepared by him he testified as follows: "I took it to Brooks. He examined it in my presence. He objected to the condition as to the payment of the mortgage. I informed him that Mr. and Mrs. Dresel and Mrs. Loring had taken the estate on the same condition, and we should have to follow the previous grant. I went to my office, and procured the deed from Higginson to Mrs. Loring and Mrs. Dresel, and took it to Brooks. Brooks would not examine it then; but said he would do so and inform me. I waited about