13 F. 260 | U.S. Circuit Court for the District of Massachusetts | 1882
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,
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.
Demurrer overruled.