O'Brien v. Higgins

Decided September 15, 1872

Massachusetts Supreme Judicial Court · decided 1872-09-15

Contract on a written agreement dated May 2, 1871, by which the plaintiff sold his house and land to the defendant, $50 to be paid immediately, and the balance “ on delivery of the deeds; possession at once.” At the trial in the Superior Court, before Rockwell, J., it appeared that at the time of the sale the premises were occupied by a tenant at will of the plaintiff, who paid his rent monthly in advance, the last payment being on April 10; that a few days after the sale…

Decided 1872-09-15

Morton, J.

¶1By the fair construction of the contract sued on, the plaintiff agreed to give the defendant actual possession of the premises on delivery of the deed. As he did not offer to, and could not do this, he is not entitled to recover.

¶2It may be true that upon the delivery of the deed the term of the tenant at will would have been terminated, and the defendant would have had the right to recover possession. But this is not *161what the contract contemplated. The stipulation was that the defendant was to have actual possession, and not merely the right of possession. Exceptions overruled.