232 Mass. 157 | Mass. | 1919
In April, 1915, the defendant Robertson, hereinafter called the defendant, negotiated with one Langley for the conveyance to her of a lot of land, the title to which was in Langley by reason of his and his predecessors’ continuous and uninterrupted adverse possession under a claim of title since July 1, 1867. Wishart v. McKnight, 178 Mass. 356. The lot in question is Lot 8 on a plan of lots duly recorded as owned by Z. L. Raymond and others, was occupied by Langley, and was known as 68 Dana
The plaintiff’s title examiner, who was also its treasurer, examined the title. He had examined the title for Langley and had assumed then, as he did on the application of the defendant, that Lot 8, which was occupied by Langley and was known as 68 Dana Street, was Lot 7 on the plan above referred to. On this assumption he signed the “Certificate of Attorney” on the application as follows: “The title to the within described estate is satisfactory.” He testified “that if he had supposed that 68 Dana Street and Lot 8 were the same he would not have accepted the title; . . . that it was not the custom of his bank to take mortgages on titles by adverse possession; [[and] that the plaintiff’s, bank would not have made the loan if he had not found the record title satisfactory.”
The history of the title of Langley and of his predecessors in occupation of Lot 8 under a claim of ownership, concisely stated is as follows: On July 1,1867, Raymond, then owning all the lots on the recorded plan except Lot 9, conveyed by deed to one Flagg a lot which had the bounderies of and was described as lot “Seven” on a plan of land in Cambridge owned by Z. L. Raymond and others. Flagg entered into possession of Lot 8 on said plan. In 1870 Flagg gave a deed to one Steele, which deed followed the same description as that contained in Raymond’s deed to Flagg. This same description was repeated in each successive mesne conveyance down to a deed in January, 1900, to one Charlotte E. Fuller. Each of the successive grantees under Flagg occupied Lot 8 which from 1873 was known as 68 Dana Street, although not described by street number in any deed; and their claim to Lot 8 has never been disputed. Fuller and her heirs occupied Lot 8 until August 3, 1910, when her heirs gave a deed
Langley entered into possession and occupied Lot 8 until April 27, 1915, the day he delivered his deed to the defendant with the description contained in the deed of Fuller to Langley. On the same day the examiner of titles prepared the mortgage deed, following the description in the deed of Langley to the defendant; the defendant executed it and the plaintiff paid the defendant $2,400.
Upon the foregoing undisputed facts it is plain that the plaintiff and the defendant were in agreement upon the subject matter of their negotiations. The defendant sought to obtain a loan upon the security of a mortgage upon real estate in the occupation of Langley. The plaintiff undertook to make the loan upon the security of that mortgage when Langley should by his conveyance enable the defendant to execute the mortgage deed. The plaintiff and the defendant both understood that Langley had a record title to the lot and that the deed of Langley to the defendant transferred that title.
It turns out that they were mutually mistaken in both suppositions, as the deeds to Langley and his predecessors in occupation and the deed of Langley to the defendant conveyed no title to Lot 8. Cassidy v. Charlestown Five Cents Savings Bank, 149 Mass. 325. In a word, their mutual mistake does not concern the subject matter of their agreement but relates to the origin of the title to the lot which the defendant undoubtedly held in fee. In these circumstances equity will compel the defendant to reform the deed so as to give the plaintiff a title to the lot which was in fact intended to be conveyed. Cassidy v. Charlestown Five Cents Savings Bank, supra. J. P. Eustis Manuf. Co. v. Saco Brick Co. 198 Mass. 212.
The defendant entered upon and occupied the premises on
It is the settled rule that the decree of reformation takes effect from and relates back to the day of the first execution of the reformed instrument, except as to purchasers for value without notice and those standing in similar relations. It is contended that attachment creditors cannot stand in the relation of bona fide purchasers for value without notice. However the law may be elsewhere it is settled in this Commonwealth that "An attaching creditor stands in the position of a purchaser for value, and, as a deed duly recorded takes precedence of a prior deed unrecorded, so an attachment, when duly made, has the effect of a prior purchase and takes precedence of a prior unrecorded deed.” Woodward v. Sartwell, 129 Mass. 210, 212. Hughes v. Williams, 218 Mass. 448.
It follows in accordance with the terms of the report that a decree is to be entered that the mortgage be reformed, subject to the liens preserved by the defendant trustee in such sum as is determined hereafter, and without costs to either party.
Decree accordingly.