This is a suit in equity brought by Harold S. Andrews, hereinafter called the plaintiff, for reformation of a deed of land from the defendant to the plaintiff by changing the description of the land conveyed so as to include other land not originally within the description. Other heirs at law and the husband of the plaintiff’s mother were by amendment of the bill added as parties plaintiff. The defendant pleaded, with other defences, the statute of frauds. The case was referred to a master whose reрort was confirmed and thereafter a decree for reformation of the deed as prayed for was entered from which the defendant appealed. There is also an appeal from an interlocutory decree.
Prior to April 5, 1919, the defendant was the owner of a parcel of land eight by eight rods in size, having taken title thereto under two deeds each of which conveyed to her a parcel of land eight by four rods in size. By the deed now in question, dаted April 5, 1919, she conveyed one of these parcels to the plaintiff, and the plaintiff, when the deed was delivered, paid the agreed price of $4,000. The plaintiff procured $3,000 of the purchase price by a mortgage of the property to the Adams Co-operative Bank on April 5,
The defendant does not contend that the finding of mutual mistake was wrong. Her only сontention is that in the circumstances of this case the statute of frauds is a defence to the suit to reform the deed so that it will conform to the intention of the parties.
Since the bill seeks to have the deed reformed so as to inсlude land not within the original description, the statute of frauds is a defence unless the specific facts found take the case out of the operation thereof. In the leading case of Glass v. Hulbert,
Material facts include these: There was a comparatively modern dwelling house, and also a barn, on the parcel of land described in the deed and no buildings or structures of any kind on the other parcel. Soon after the conveyance, the plaintiff with his father, mother and three brothers moved to the premises and “the plaintiff has continued to live and make his home upon said premises up to this time while the plaintiff’s mother lived and made her home upon said premises until the time of her decease,” and from the time “when thе plaintiff and his mother took up their residence upon the premises . . . the plaintiff and his mother and her family up until March 7, 1931, the date of the plaintiff’s mother’s death, and thereafter the family of the plaintiff’s mother consisting at that time of the plaintiff and his father and perhaps a brother of the plaintiff, used and occupied as their own and exercised full and complete ownership and control over the entire property . . . eight by eight rods in size.” Whatever occupation or use of this parcel of land “was made by the plaintiff subsequent to April 5, 1919, was until his mother’s decease made by him in behalf of his mother to whom he had conveyed the property deeded to him by the defendant, and after March 7, 1931, the date of his mother’s death, in the capacity of . . . administrator of his mother’s estate or” one of the heirs at law.
The entire premises, including the parcel not described in the deed, have been assessed as a single parcel since April 5, 1919, to the plaintiff, his" mother, or his mother’s heirs and devisees, and taxes thereon have been paid through the year 1930 by the plaintiff, his mother, or the plaintiff as administrator of his mother’s estate.
The parcel of land not described in the deed was used as a garden by the plaintiff’s mother during her lifetime and for one year thereafter by the plaintiff. “The plaintiff’s mother also caused to be set out a hedge of flowering shrubs at the northeasterly corner of said parcel ... a half dozen or more rose bushes on the northerly part of said land . . .
Before June 11, 1932, “the defendant had supposed that the parcel of land in question was included in her deed dated April 5, 1919, to the plaintiff,” but on or about June 21, 1932, she “commenced to use and occupy and assert ownership” over it.
The basis for estoppel against setting up the statute of frauds is such change of situation or part performance by the party seeking relief as places him “in a situation which is a fraud upon him, unless the agreement is fully performed.” Curran v. Magee,
Here there was full payment of the purchase price of the entire premises. It has been held that such a payment alone is not sufficient part рerformance to take a case out of the statute (Glass v. Hulbert,
In this case, however, there are more facts than full payment of the purchase price and a mеre change of possession to show a change of situation in reliance on the mutual understanding which failed of expression in the deed. See Fireman’s Fund Ins. Co. v. Shapiro,
The parcel of land not included in the desсription in the deed was one half the area intended to be conveyed — not a comparatively small part thereof as in Collins v. Stanbon,
The making of substantial improvements on the land is ordinarily an important element in the part performance which takes a case оut of the statute of frauds. Potter v. Jacobs,
Without relying on any particular fact alone but considering the effect of all the facts in combination we conclude that “an unjust and unconscientious injury and loss” will result therefrom if relief is denied. See Curran v. Magee,
The defendant properly does not contend that right to relief is affected by the fact that the plaintiff, the original grantee, conveyed the premises to his mother and that many of the acts relied on to take the case out of the statute of frauds were donе by her or in her behalf. She succeeded to any rights which he had to have the deed to him reformed.
Interlocutory decree affirmed.
Final decree affirmed with costs.