Opinion
No. 3813.
Decided May 3, 1949.
In a bill to reform a deed of a certain passageway of specified width, the fact that the grantee failed to use that portion upon which there were obstructions or to protest thereto does not compel a finding as a matter of law that a lesser width was intended by the parties. Reformation of a deed for mutual mistake will not be denied the grantor merely because the grantee denies the claim that the mistake is mutual.
BILL IN EQUITY to reform the provisions in two deeds relating to the width of a fifty foot passageway conveyed therein by the plaintiffs to the defendant. Trial by the Court with a dismissal of the bill because the plaintiffs "failed to sustain the burden of proving the existence of a material mutual mistake as to the fifty foot passageway granted in the deed in question." Plaintiffs' exceptions to the Court's findings, ruling of law and decree were reserved and transferred by Lampron, J.
In 1933 the plaintiffs by two deeds conveyed certain property on Elm Street in Manchester to the defendant. Each deed contained the following: "so far as the grantor has the right to so grant, the use of the fifty foot passageway known as Green Street." It appeared that Green Street had never been accepted as a public highway by the city of Manchester and it was occupied for approximately one half its width by wooden sheds and structures so the unobstructed portion of the passageway was about twenty-five feet wide although its measured width varied from twenty-seven to twenty-nine feet. In the written offer of purchase by the defendant and the written acceptance in behalf of the plaintiffs there was no reference to the width of the passageway.
The Court found that the plaintiffs acted with reasonable diligence in asserting their claim of error in said deeds by filing the present bill in 1947 and "that the defendant has not in any manner changed its position since the delivery of said deeds in reliance upon the description in said deeds of a fifty foot passageway." Other findings were: "The Court finds that the defendant bought the property with the understanding that it would receive the use of a fifty foot passageway known as Green Street. . . . The Court further finds that the conveyance to the defendant in 1933 of the right to use a fifty foot passageway known as Green Street was not the result of a material mutual mistake as to the width of the passageway to be conveyed."
Warren, Wilson, Wiggin Sundeen (Mr. Wiggin orally), for the plaintiffs.
Sulloway, Piper, Jones, Hollis Godfrey (Mr. Alvah Sulloway orally), for the defendant.
The issue in this case is whether there is evidence to support the conclusion of the Trial Court that there was no material mutual mistake as to the width of the passageway conveyed. There is no claim nor evidence to support any claim of fraud and misrepresentation (Morgan v. Morgan, 94 N.H. 116) or duress and undue influence (Webber v. Phipps, ante, 1) or even a mistake by the plaintiffs innocently induced by the defendant (Rickle v. Mills, 93 N.H. 191). It is therefore unnecessary to consider the conditions under which equity will grant relief for an unilateral mistake. Carignan v. Company, ante, 262, 265; 3 Pomeroy, Equity Jurisprudence (5th ed.) s. 870a; Restatement, Contracts, s. 505. It is plaintiffs' sole claim that the use of the words "fifty foot passageway" by the parties and the attorney who prepared the deeds was a mutual mistake, it being the intention of the parties at the time of the conveyance to convey and receive only the use of an existing unobstructed passageway approximately twenty-five to twenty-nine feet in width.
In support of its argument that the Court's decree dismissing the bill in equity is contrary to the evidence, the plaintiffs point to the fact that the defendant has used the passageway for thirteen years at considerable inconvenience without protest to anyone as to the obstructions thereon. While this affects the weight of the defendant's evidence that the parties intended a fifty foot passageway, it does not follow as a matter of law that a passageway of lesser width was so intended by the parties. It could be found that defendant's failure to use the obstructed portion of the passageway "is indicative of indifference to a temporary invasion of one's right as much as of recognition of the other party's claim of right." Farmington Library Ass'n v. Trafton, 84 N.H. 29, 32. Unlike the situation in Hogan v. Lebel, ante, 95, there is no ambiguity in the description of a right of way as expressed in the deed and the findings of the Trial Court being sustained by the evidence must stand. Chabot v. Shiner, ante, 252.
It is finally suggested that if this decree is affirmed, reformation for mutual mistake will be withheld merely because the defendant denies the claim of mutuality of mistake. Fortunately this is not true as Hould v. Company, 83 N.H. 474, conclusively demonstrates.
Exceptions overruled.
All concurred.