244 Mass. 1 | Mass. | 1923
The mother of the parties, Mary Magee, an aged woman, who owned two adjoining parcels of land with a house on each, conveyed on January 18, 1910, for a valuable consideration, one parcel to her daughter the defendant Mary E. Ryan. And having determined to transfer the remaining lot to the plaintiff “because of the care and some degree of support . . . voluntarily furnished . . . without any contract or expectation of payment,” she executed September 1, 1911, a deed of that lot. It is found on evidence not reported that the grantor “felt a moral obligation to compensate the plaintiff, and also” made the conveyance “because of . . . parental love and affection.” A further finding follows, that one motive of the grantor was “to dispose of her property before her death, she having no property except said remaining lot.”
By mistake she gave to counsel employed by her to draft the
It is plain that the parties to the deed believed that the remaining land had been conveyed in accordance with the purpose of the grantor to distribute the remainder of her estate. The grantor died intestate September 23, 1911, leaving as her only heirs two daughters, Margaret E. and Mary E. Ryan, and two sons, John F. Magee, the defendant, and another, who subsequently ■died unmarried and intestate. The plaintiff, ignorant of the mistake which was not discovered until nine years thereafter, entered on, and has remained in possession of the premises ever since, making repairs and improvements, paying the taxes and collecting the rent. The bill asks that the defendants may be ordered to execute and deliver to the plaintiff a valid deed conveying all their right, title and interest in and to the real estate erroneously described in the deed.
A mutual mistake is clearly shown and ordinarily the plaintiff would be entitled to relief. Page v. Higgins, 150 Mass. 27, 30, 31. Gaylord v. Pelland, 169 Mass. 356. J. P. Eustis Manuf. Co. v. Saco Brick Co. 198 Mass. 212, and cases there collected. But while the defendant Ryan makes no contest, and the bill as to her has been taken for confessed, the defendant Magee having failed in his defence that there was no mistake, further contends, that the plaintiff being a volunteer, and not a purchaser for value, rectification is barred by the statute of frauds, which is pleaded in the answer. Sunter v. Sunter, 190 Mass. 449, 454, 455, and cases cited. The defendant is an heir at law of the grantor by whom the error in the description was made, which he now asserts deprives the plaintiff of the estate her mother intended to convey and believed she had conveyed. It is clear on the record that the plaintiff’s occupation began shortly after her mother’s death and had continued uninterruptedly for more than nine years, when the defendant apparently challenged her title. It is found that she has painted
But even if referred to, these considerations are not of primary importance. The question is not what the plaintiff’s rights and remedies may be if the defendant prevails. It is whether she has made out her claim to absolute ownership. While the defendant with constructive notice of the recorded deed, and knowing that she was in possession, remained silent, the plaintiff paid the taxes, made the changes and improvements which have enhanced the value of the property, in the honest belief that she was the sole owner. It is true that she collected the rents, yet quite apart from any question of interest, the amount is insufficient to cancel completely the disbursements. The plaintiff was induced to take possession and make substantial improvements in reliance upon what her mother had said and done, that she was to have the land and a deed conveying it to her had been prepared, executed, delivered and recorded. It cannot be assumed that even if she had been informed, or even suspected that the defendant would take the position that her title was only that of a tenant in common she would have made the outlays and managed and used the property as described, thereby subjecting herself to the delays, uncertainties and expenses of vexatious litigation. It is immaterial, if part performance is shown, that the land was a gift. Glass v. Hulbert, 102 Mass. 24. Woodbury v. Gardner, 77 Maine, 68, 71,
The appeal brings up the record and this court can not only draw inferences of fact from facts therein found, but no question of conflicting oral evidence being involved, we are in the same position as the judge of the trial court who heard the case, and can determine whether relief should be decreed. Glover v. Waltham, Laundry Co. 235 Mass. 330. Danforth v. Chandler, 237 Mass. 518. Hurd v. General Electric Co. 215 Mass. 358, 360. Mansfield v. Wiles, 221 Mass. 75, 84.
The defendant’s rights are no greater than those of his mother, the intestate, under whom he claims title by inheritance, Donovan v. Walsh, 238 Mass. 356; Hickey v. Dole, 66 N. H. 336, and the question is whether on the facts, to which sufficient reference has been made, he is estopped from pleading G. L. c. 259, § 1. Glass v. Hulbert, 102 Mass. 24, 35. A suit for specific performance is addressed to the sound discretion of the court. It is to be reasonably, and not arbitrarily, exercised. Curran v. Holyoke Water Power Co. 116 Mass. 90. Nickerson v. Bridges, 216 Mass. 416, 421. No general rule can be formulated which will cover all possible cases. It has however been said that nothing is to be considered as part performance which does not place the party seeking relief in a situation which is a fraud upon him, unless the agreement is fully performed. Barnes v. Boston & Maine Railroad, 130 Mass. 388, 390. Ahrend v. Odiorne, 118 Mass. 261, 268. Sarkisian v. Teele, 201 Mass. 596. Williams v. Evans, L. R. 10 Eq. 547. This principle has been recognized, applied and relief given under varying circumstances in Potter v. Jacobs, 111 Mass. 32, Low v. Low, 173 Mass. 580, Harrell v. Sonnabend, 191 Mass. 310, Williams v. Carty, 205 Mass. 396, Davis v. Downer, 210 Mass. 573, Traveler Shoe Co. v. Koch, 216 Mass. 412, People’s Express, Inc. v. Quinn, 235 Mass. 156, 159, Tracy v. Blinn, 236 Mass. 585, 588, Donovan v. Walsh, 238 Mass. 356, 362. We are satisfied in the light of those cases that if relief were denied the combined effect of that which has been done would subject the
Ordered accordingly.
