Whitman v. Weston , 30 Me. 285 ( 1849 )

Tenney, J.

— Notwithstanding the general principle, that parol testimony is incompetent to vary the effect of written instruments, mistakes therein, whether they are agreements executory, or executed, may be reformed by Courts of Equity, when such mistakes are shown to exist, so that the intention of the parties may be effected. But this relief will never be afforded, when the mistake is not proved to the entire satisfaction of the Court, inasmuch as the parties are presumed to have expressed in their written contract their actual intention. And it is usual to require some other proof than the simple recollection of those present at the making of the contract. If there are other written instruments, which have a relation to that in which the alleged mistake is found, satisfactory light may be obtained therefrom. If there are inconsistencies between one part of a written instrument and another, which cannot be reconciled, and if those inconsistencies disappear by the alteration of a single word, it may be abundantly evident, that a mistake was made.

In this case Butler’s grantor could not have intended to convey a tract of land by courses and distances, referring to monuments, which were prepared as the termination of several of the lines described, unless there had been a correspondence one with another; and when by changing the place of beginning, there is a perfect coincidence in the different parts of the description, it is manifest, that a mistake was made by the person, who prepared the deed. How far this could have affected the grantee or his heirs in a suit against either would depend upon the facts which might be presented. As appears by the answer in this case, the defendant had in fact no knowledge of such a mistake. He took his deed without having seen the land, upon the report made by his agent, who was sent, to examine the timber to be found thereon, as it was described in the deed to Butler.

It is insisted, that as the defendant received only quitclaim deeds of the land from the heirs of Butler, he took merely the right which Butler had acquired by the deed to him, and that he stands in no better situation. It is not suggested, that the deeds under which the defendant claims, are different from quitclaim deeds in the usual form, and for a valuable consideration. The bill alleges them to be deeds of quitclaim and release, and they are to receive such a construction as will effect the intention of the parties and not defeat it. Such conveyances have been construed to be a bargain and sale, by which the estate described will pass. Pray v. Pierce, 7 Mass. 381. By Revised Statutes, chap. 91, § 8, “a deed of release and quitclaim, of the usual form in this State, shall pass all the estate, which the grantor had, and could convey by a deed of bargain and sale.” If Bussey’s grantee could have been made subject to the equitable principle by which his deed could be reformed for the mistake, it could not have been the intention of the Legislature, that a bona fide purchaser, for a valuable consideration, without notice of the mistake, should not be allowed to protect his title, by reason of his holding under a deed of release and quitclaim.

The defendant’s answer is full and conclusive, that he had no actual knowledge of the mistake alleged. Had he such constructive notice of it, as will charge him therewitli ? In order that he should be so affected, the facts which he is presumed to have known when he took his deeds must have been of such a character, that he is not allowed to show by proof, that he had not the knowledge imputed. Ho was bound to know the state of his grantor’s title, as exhibited by the registry and by the deed to his grantor. By these he would find that Bussey conveyed to Butler by metes and1 bounds, and nothing in the description would reasonably lead him to doubt, that this was in all respects as the parties thereto. designed. The quantity of land by computation, according to the length and direction of the lines, would probably have been greater than that named in the deed ; but this is wholly immaterial, for an erroneous computation would not control the monuments or the courses and distances; but the deed left the amount uncertain, as appears by the use of the terms “ more or less” applied to the quantity.

The failure upon actual experiment, if such may be supposed to have been made, to find the monuments described by running the courses and distances, beginning at the north-west corner of lot letter “ B,” could not be constructive notice of a mistake in the description. From the time of the execution of Bussey’s deed to Butler, more than twelve years had elapsed before the defendant acquired his title. If monuments were in existence, they might not all have been seen, at the time the deeds to him were executed; but several of them were artificial, and made of perishable materials, and might well be supposed to have fallen and disappeared. If all the monuments could have been seen, there was nothing, which must have carried a knowledge to him that they were monuments referred to in the deed, and nothing to indicate in the least, that they were intended as the monuments by which a conveyance had been made, or that the point of beginning therein was different from that expressed in the description.

The actual possession by the plaintiff of a part of lot letter ,£ B,” at the time of the defendant’s purchase, was not constructive notice to the defendant of the mistake, even if such possession required him at his peril, to institute inquiries in order to ascertain by what title that possession was held. For by inquiry, the most, which could reasonably be expected as the result., would be that the plaintiff had a deed from those authorized by Bussey’s will to give deeds of the real estate of which he died the owner, dated on July 6, 1844, and that on the 6th day of July, 1841,. he had a bond for a deed of lot letter “ B that he subsequently went into possession, built a house and made improvements. All this could not have been a sufficient notice to the defendant, that there had been a mistake in the boundaries of the land conveyed to Butler, years before. It would at most be evidence, that the same land had been conveyed twice; once by Bussey to Butler, and afterwards, by the trustees under Bussey’s will, to the plaintiff, and that the former deed took precedence of the other.

The counsel for the plaintiff relies upon the case of Washburn v. Merrill, 1 Day’s Cases in Error, 139, where by mistake an absolute deed was given instead of a mortgage, as had been agreed. The mortgagee had conveyed. Parol evidence was admitted, which showed the mistake satisfactorily and the deed was reformed. The point was not made that the purchaser of the mortgagee, was a bona fide purchaser, for a valuable consideration without notice, and it is to be presumed, that such was not the case. The other case cited from this State, of Warren v. Ireland, 29 Maine, 62, is not analogous.

Bill dismissed with costs.