134 A. 849 | R.I. | 1926
Heard on appeal from a final decree of the Superior Court ordering reformation of two deeds and incidentally enjoining respondents Boscaglia from prosecuting an action of trespassquare clausum against complainant.
The facts as found by the lower court show that respondent Fisher sold certain real estate with a dwelling and barn thereon on Metcalf street, in Providence, to complainant and about three months later sold an adjoining parcel *34 likewise with dwelling to respondents Boscaglia. The lots were conveyed by deed describing them only by number on a plat. There was a fence upon the platted lot named in the Boscaglia deed. It had stood for a long time. To both purchasers, prior to the sale, their respective properties were pointed out and the trial justice finds "both clearly purchased according to the existing boundary lines then on the property as shown by the fences". The lot delineated on the plat referred to in the Conti deed showed the northerly line to be six feet south of the fence and the lot delineated on the plat referred to in the Boscaglia deed showed its southerly line to be identical with the aforementioned northerly line of the Conti deed. The result, according to the deeds, was that the Boscaglias seemed to have title to a strip six feet wide extending the full depth of the lot between the fence and the division line as shown on the plat. This strip neither the Boscaglias had intended to purchase nor Fisher to sell to them. Written receipts for deposits at the time of the making of the contracts of sale were given by Fisher to both Conti and Boscaglias and the deeds supposedly pursuant thereto followed. These receipts referred to the land sold as Nos. 105 and 109 Metcalf street, respectively. They had been lost prior to the trial and the introduction of oral evidence of their contents, together with other oral evidence of the intentions of the parties, over respondents Boscaglia's objections based upon the statute of frauds furnishes the basis for respondents' present contentions.
Both purchasers entered into occupation of their respective curtilages, complainant occupying the house and barn, — the latter of which rested upon a portion of the six foot strip now in dispute, — and the respondents Boscaglia occupying the house within the fence lines on their lot but at no time exercising dominion either real or apparent over the six foot strip. After four years of such occupation the mistake in the deeds was discovered and the present litigation followed. *35
The court found on the evidence that a mutual mistake had been made in the descriptions in the deeds whereby Conti received less than had been purchased and the Boscaglias more. The decree recites these mutual mistakes and gives directions concerning their rectification. Respondent Fisher, who admitted the mistake and joined in the prayer of the bill, is ordered by the decree to clear the record title of complainant by releasing all of her right, title and interest in the strip in question after the Boscaglias have quitclaimed to complainant their interest in said six foot strip and the Boscaglias are directed to discontinue prosecution of the law suit against Conti for trespass.
Respondents Boscaglias say a single point is presented, viz., "whether such a conveyance of real estate as prayed for by the bill and ordered by the decree to be made by respondents is within the statute of frauds." Gen. Laws 1923, Ch. 333, Sec. 6 (4854).
The general jurisdiction of equity to correct mistakes is not questioned nor the right therein to introduce parol evidence to show mutual mistakes and seek reformation of written instruments in general. Walden v. Skinner,
Complainant and the lower court regard the instant case as ruled not by the Macomber case but by Carroll v. Ryder,
We find nothing in the Ryder case that reverses or modifies the Macomber case in spite of the fact that a strong current of modern authority is running against the latter's doctrine See note in L.R.A. 1917 A. p. 573.
While the question of admitting oral evidence to prove a contract within the statute of frauds was raised in the case at bar, it was not the sole question raised and the other elements here present bring the instant case, as said by the trial court, nearer to the Ryder case. There were written evidences of the contracts. The receipts did not show the boundary lines and required oral evidence to make them definite. The contract had been fully executed.
Unlike the Ryder case, however, use of parol evidence concerning the present contract required more than explanation because the written receipts had been lost. Questions of the right to use secondary oral evidence at all when objected to because of the statute of frauds and if usable the extent of its use to explain the meaning of the receipts were suggested in the lower court. They were not *38
determinative, however, because that court found that complainant for four years had been in possession and occupation of the premises within the fence lines and including the strip in question and that respondents Boscaglia had never been in possession or occupation thereof. The record comes to us with the agreement that the facts are as found by the trial justice, and upon such a finding neither was he nor are we called upon to decide upon the admissibility of purely oral evidence where the statute of frauds is involved. Irrespective of the question whether secondary oral evidence or any other oral evidence relating to the intention of the parties was admissible the unquestioned evidence of what the parties did in pursuance of the oral contract showed sufficient performance on the part of complainant to remove the case from the statute of frauds and to warrant the decree. Conlin v. Masecar,
Respondents Boscaglia's appeal is dismissed and the cause is remanded to the Superior Court for further proceedings.