Wells v. Day

Endicott, J.

The plaintiff sold by public auction twenty parcels of land. They were separately described in the advertisement, and separately sold. Each lot stood by itself, and the defendant, having bid off four lots, numbered 1, 3, 4 and 17 respectively, signed a separate memorandum of the purchase of each, stating the price and binding himself to the terms of the sale. The purchase of each parcel was a distinct contract, and the failure of the plaintiff to tender a deed in season of lot 17 did not discharge the defendant from his obligation tc perform his . contracts made respecting the other lots. Van Eps v. Schen ectady, 12 Johns. 436. Emmerson v. Heelis, 2 Taunt. 38. Roots v. Dormer, 4 B. & Ad. 77. There is nothing to show that the lots purchased by the defendant were so complicated with each other that the enjoyment of one depended upon the purchase or possession of the others, and there was no understanding that the defendant was not to take any of the lots unless he could obtain all. See Sugd. Vend. (14th ed.) 320.

It is stated in the bill of exceptions that it was supposed by both parties, at the time of the sale, that the spring by which the water was conducted in pipes to lot 1 was situated on lot 17, but it was afterwards discovered that it was not on that lot, nor on any land belonging to the plaintiff. It does not appear whether the defendant was led so to suppose by representations on the part of the plaintiff, or by information derived from other sources, nor does it appear that the plaintiff was aware that such was the belief of the defendant. There is no imputation of fraudulent representations by the plaintiff, and it expressly appears that no fraudulent representations were made at the auction, and that the sale was in every respect fairly conducted. Whatever, therefore, may be the explanation or origin of this belief on the part of the parties, it clearly cannot affect or control the written contracts entered into by the defendant: and, in the absence of fraud or imposition, he is presumed to understand the terms and effect of them, and to assent to them. There was no mistake as to the subject matter of the contract, or the identity of the property sold, or the boundary of lot 1, as described in the advertisement, and recognized by the defendant when he signed the memorandum. See Townsend v. Weld, 8 Mass. 146; Harlow v. Thomas, 15 Pick. 66; Noble v. Bosworth, 19 Pick. 314; Dodge v. Nichols, 5 Allen, 548; Grace v. Denison, 114 Mass. 16; Faucett v. Currier, 109 Mass. 79, and 115 Mass. 20; Mooney v. Miller, 102 Mass. 217.

Nor can we hold that the contract is avoided because the advertisement, in describing the buildings situate on lot 1, states that they are “ in good repair, with running water to house and barns,” or because the memorandum of sale includes “ also 100 or more rods of lead pipe conveying water to the house,” when in point of fact the source of supply was not on land of the vendor. The statement that there is running water to the house and barns does not, in terms or by necessary implication, amount to a stipulation or representation that the source of the supply belongs to the -vendor, or is on the premises described or on other land of the vendor. There is nothing in the language necessarily indicating this, and there is nothing in the nature of the subject matter from which it is to be necessarily inferred. This statement may be entirely consistent with the vendor’s ownership ; but it would be equally consistent with the fact that the supply came from a public source, or from a water company, and from what source it actually came does not appear. As before stated, the sale of this lot was a distinct and independent contract, and is to be treated as if no other lots were bought and sold at the same time.

Nor does the statement that one hundred rods of lead pipe, conveying water to the house, are included in the sale carry with it any necessary presumption of ownership in the source of sup ply, or that the supply was an easement belonging to the estate. It was merely a statement that an artificial pipe of a certain length, in use at the time for the passage of water to the house, would be sold with the premises. Such a pipe will pass as appurtenant, although not mentioned in a deed; it is a fixture, and if it extends beyond the limits of the estate conveyed, as in this case, and is owned by the vendor, the vendee, as against him, would have the right of property in it and the right to use it. This pipe, therefore, would have passed to the defendant, although not mentioned in the memorandum; and the fact that it is mentioned cannot vary or enlarge the privilege, or imply any right to the flow of water through it. That is an easement not expressly described in the memorandum, and, in order to include it by implication, must actually have belonged to lot 1 at the time of the sale. Philbrick v. Ewing, 97 Mass. 133.

The defendant was not entitled to a warranty deed; Kyle v. Kavanagh, 103 Mass. 356; and, as the presiding judge found in substance that his refusal to take any deed, or to accept perform - anee of the contract for the sale of lots 1, 3 and 4, was unqualified and absolute, he properly held that the defendant had waived his right to performance. He cannot, therefore, avail himself now of any defects in the deed proposed, or of the fact that the mortgages were not discharged. Carpenter v. Holcomb, 105 Mass. 280. Daniels v. Newton, 114 Mass. 530, 533.

The contracts being separate and distinct, no reason is shown why the defendant is not liable for breach of his contracts in regard to lots 3 and 4; and, for the reasons stated, wer are also of opinion that he is liable for breach of his contract for the purchase of lot 1. Exceptions overruled.