110 Mass. 170 | Mass. | 1872
That there is an omission, by mistake, of a pait of the boundaries by which the land intended to be conveyee? should be described, is manifest from inspection of the deed. The
As against Butterfield, the bill has been taken pro confessa; and thus the real contract and intention of the parties to the deed, and the nature and fact of the mistake, as set forth in the bill, are admitted. Against him, therefore, the plaintiff is entitled to the relief he seeks.
The defendant Shay does not deny the contract or the mistake, and does not set up the statute of frauds. He is a necessary party, because he has obtained from Butterfield a deed of the land, subsequent in date but of prior record, covering a part of the land intended to be included in the deed to the plaintiff.
Having jurisdiction of the cause for the purpose of relief by way of correction of the mistake in the plaintiff’s deed, the court will retain the suit for the purpose of making that relief effectual and complete; and therefore will adjudge the plaintiff’s rights as against Shay, and decree all proper relief against him; even if, upon proof that he took his deed with notice, an action at law or a legal defence might be maintained against him. But if the first deed passed no legal title to the plaintiff, no action or defence at law could be maintained, at least, without proof of actual fraud in giving and obtaining the second deed.
In equity, however, it is sufficient if Shay took his deed with notice of the plaintiff’s equitable rights. That he had such notice is clear beyond question, from the master’s report. The report shows no equitable grounds upon which Shay can resist the right of the plaintiff to have the title confirmed to him, according to the real intent of his deed from Butterfield. It is manifest that Shay took his deed with knowledge of the plaintiff’s equitable rights, intending to take advantage of the neglect of the plaintiff to record his deed.
In order that the title of the plaintiff may be made good against both, the defendant Butterfield should be required to execute a deed of correction; and the defendant Shay should be required to join therein, or else to separately release to the plaintiff all right and title acquired from Butterfield in that part of the land intended to be included in the plaintiff’s deed, which has since been conveyed to Shay. Decree accordingly.
