Sampson v. Mudge

Aug 22, 1882
Reporters:
,
Before:
Lowell
Lowell, C. J.

Counsel agree that the deed A does not convey a fee; but the defendant Mrs. Mudge contends that it cannot be reformed without violating the statute of frauds. The other defendants have not seen fit to plead or answer. It might be enough to say that the bill does not show that the agreement by which the plaintiff seeks to reform the deed was oral, but, as the case has been fully argued on the supposition that it was so, I will take that fact for granted. If it shall be found that the decisions in Massachusetts would authorize the court to reform this deed, there will be no occasion to cite other cases, because those decisions are as little favorable as any, and less so than most others, to the exercise of this equitable power.

1. It is clear that if there is any difference as to tbe amount of evidence required, or in any other way, between correcting a mistake of law and one of fact, the mistake of a scrivener in Louisiana as to the law of Massachusetts is a mistake of fact.

2. It is the law in Massachusetts, as elsewhere, that the mistake of a scrivener in drawing a deed, whether it be a mistake of law or fact, whereby he fails to carry out the previous agreement of the parties, *262may be corrected in equity. Canedy v. Marcy, 13 Gray, 373; Stockbridge Iron Co. v. Hudson Iron Co. 107 Mass. 290; Rumrill v. Shay, 110 Mass. 170; Wilcox v. Lucas, 121 Mass. 21. In all these cases the evidence was oral, and in all but one the defense of the statute of frauds was set up. The court, in a very elaborate and ingenious opinion by the late lamented Justice Wells, in Glass v. Hulbert, 102 Mass. 24, refused to make a positive addition to the terms of a description in a deed upon merely oral evidence. This decision is ably criticised in 2 Pomeroy, Eq. Jur. § 867, and may need modification, but it is enough here to say that the court in that case escapes the argument of part performance upon grounds which are wholly inapplicable in this case, and this is, of'itself, a vital difference between the two.

3. There is a third point which is favorable to the plaintiff. It appears by the deed itself, which, as is remarked by Ames, 0. J., in Allen v.'Broum, 6 B. I. 386, 398, is evidence of the highest order that the parties intended to convey a fee. No one can read the deed and doubt that it undertakes to grant whatever estate was derived by the grantors by inheritance from their sister. By the law of Massachusetts, these words in a will would convey a fee, and in this suit the question is precisely the same as if we were construing a will; that is, what was the true intention of the parties using the words ? I do not mean to intimate that the plaintiff should not produce all the evidence she has if the case goes on, but that, upon the face of the deed, until some evidence is introduced one way or the other, it intends to convey a fee. This leads me to remark upon a dictum of Wells, J., in Stockbridge Iron Co. v. Hudson Iron Co. 107 Mass. 319, 320, that if, through a mistake of law, the agreement of the parties fails to be carried out in the deed, it may be corrected, but that if there is a mere mistake of law in the deed, without a previous agreement, it cannot be corrected. I do not suppose that there is often a deed, excepting in case of a gift, without a previous agreement; so that the distinction is not very important; but if a grantor, in unmistakable but untechnieal language, undertakes to convey a fee, and by a mistake, which, in an arbitrary division of subjects we choose to call a mistake of law, has failed to carry out his intention, I have no doubt that the mistake may be corrected upon the evidence furnished by the deed itself. That would be the case before me if the deed had been drawn in this state; a fortiori when it was drawn in another. Therefore, if the case were rested merely upon the deed, I should not hesitate to say that there ought to be a reformation of it.

*2634. In most of the states a judgment creditor takes by his levy the land of his debtor, subject to all equities; but the law of Massachusetts is somewhat different in this respect, and puts such a creditor in substantially the position of a purchaser. But the bill in this case charges the defendant with having notice of the true contract and intent of the parties when he made the levy, and by such notice even a purchaser would be bound. Rumrill v. Shay, 110 Mass. 170. And, if I am not mistaken in saying that the deed upon its face discloses the intention, then its record may very well he held to be notice to subsequent purchasers of the equity which that intention creates.

Demurrer overruled.