McGlynn v. Maynz , 104 Mass. 263 ( 1870 )

Chapman, C. J.

By the terms of the agreement referred to, the plaintiff agreed to sell to the defendant the land described, and to convey the same “ in fee simple, by good and sufficient deed of conveyance with full covenants of seisin, warranty and freedom from incumbrances,” &e., “ on the following conditions, viz: ten thousand dollars to be paid on delivery of deed, and the balance according to the conditions of a mortgage for five thousand dollars now on said estate.”

Within the time stipulated the plaintiff tendered to the defendant a deed properly executed, and complied with the terms of his agreement in other respects. But the deed was by its terms made subject to two mortgages; one, to Isaac Kendall for four thousand dollars with interest, to run ten years from November 27, 1860, and assigned to Mary Elizabeth Kendall, a minor; the other to Kendall for one thousand dollars with interest, to run ten years from September 1,1861. The deed was also made subject to certain restrictions, which are referred to, prescribing the size, height, materials and position of buildings that might be erected upon the land, and the manner in which the buildings might be occupied.

There is much force in the defendant’s objection that there were two mortgages instead of one, which were to mature at different times, subjecting the defendant to deal with two creditors instead of one, to double payments of interest, double cos^s of discharge, and double liability to proceedings for floréelo». ire. But it is not necessary to discuss these objections; for the restrictions upon the title are very material, and by the terms of the agreement the defendant was entitled to a deed without such restrictions. ' Judgment for the defendant.