Burke v. Burke

• Decision Date: 30 November 1923
• Citation: 246 Mass. 533,141 N.E. 601
• Parties: BURKE et al. v. McLAUGHLIN et al. MURRAY et ux. v. BURKE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

246 Mass. 533

141 N.E. 601

BURKE et al.

v.McLAUGHLIN et al.

MURRAY et ux.

v.BURKE et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Nov. 30, 1923.

Appeal from Supreme Judicial Court, Suffolk County.

Suit by Louisa A. Burke and others against Charles A. McLaughlin and others to reform a deed given to the named plaintiff, and suit by William Murray and wife against Louisa A. Burke and her husband to prevent occupancy of premises involved in both cases, consolidated. Decree for complainants in first action, and defendants in second action, and William Murray and wife appeal. Decrees affirmed.S. C. Brackett, of Boston, for appellants.

J. M. Hoy and J. E. Reagan, both of Boston, and A. A. Gelinas, for appellee Burke and others.

JENNEY, J.

This is a suit for reformation of a deed given to Louisa A. Burke, one of the plaintiffs, by persons claiming title under Patrick McLaughlin, deceased. The plaintiffs allege that the description in the deed through mutual mistake, does not describe all the land intended to be conveyed. There was tried with this suit another, in which William Murray and his wife, Julia E., ask for injunctive relief against Mrs. Burke and her husband to prevent their occupancy of the premises involved in both cases. Except as hereinafter specifically referred to, the first only is the subject of this opinion.

[1][2][3][4][5] William Murray and Julia, his wife, two of the defendants, are the only appellants from the decrees entered by the justice who heard the case. Their answer neither admits nor denies the allegations of many paragraphs of the bill, but merely purports to leave the plaintiffs to prove the same. This course is not proper. A defendant in equity must answer fully, directly, and specifically, with positiveness and certainty all material matters charged which affect the relief sought against him. Equity rule 7 of the Supreme Judicial Court and the Superior Court; Smith v. Lasher, 5 Johns. Ch. 247;Taylor v. Luther, 2 Sumn. 228, Fed. Cas. No. 13, 796. A general denial is not sufficient. The answer with certainty should confess, avoid, deny, or traverse all material allegations. Costello v. Tasker, 227 Mass. 220, 116 N. E. 573;Dailey v. Doherty, 237 Mass. 365, 369, 129 N. E. 678; Story, Eq. Pleading, § 852. If, because of lack of information or ignorance, a defendant is unable so to answer some part of the bill, an answer may be made on information and belief, or, if that course is not available, ignorance may be set up and facts may be put in issue by calling for their proof. Morris v. Parker, 3 Johns. Ch. 297;Utica Insurance Co. v. Lynch, 3 Paige. 210;King v. Ray, 11 Paige, 235. Whether under the rules hereinafter cited proof need be called for in the answer, if the defendant properly avers ignorance, is not considered. See Brown v. Pierce, 7 Wall. 205, 211, 19 L. Ed. 134. Ordinarily a defendant must answer positively, and not merely by remembrance or belief, to recent facts charged as within his own knowledge. Story, Eq. Pleading, § 854; Slater v. Maxwell, 6 Wall. 268, 18 L. Ed. 796;Woods v. Morrell, 1 Johns. Ch. 103;Hall v. Wood, 1 Paige, 404;Sloan v. Little, 3 Paige, 103. An answer on its face wholly lacking conformity to these requirements should be treated as no answer at all. Keown v. Keown, 231 Mass. 404, 121 N. E. 153;Caines v. Fisher, 1 Johns. Ch. 8. Moreover, if facts well alleged in a bill, other than for discovery only, are not properly denied or put in issue by the answer, they are deemed to be admitted. Equity rule 28, Supreme Judicial Court and Superior Court. See Thomson v. Wooster, 114 U. S. 104, 112, 5 Sup. Ct. 788, 29 L. Ed. 105. However, as the case has been fully heard without regard to the form of the answers, the appeals are considered as if there had been a proper joiner of issues.

The master, to whom the case was referred without instructions to report the evidence, found that the deed to Mrs. Burke was given under a mutual mistake of fact in that the parties intended to convey to her a considerably larger piece of land than that actually described in her deed, and ordered reformation as against the grantors, who are defendants, and who do not appeal. The appellants do not contend that the findings of the master of mutual mistake in this deed are unsupported by the evidence. The statute of frauds is not open, even if the facts would have brought the case within its terms. Glass v. Hulbert, 102 Mass. 24, 3 Am. Rep. 418;Tracy v. Blinn, 236 Mass. 585,129 N. E. 356.

[6] The question for decision is whether the plaintiffs are entitled to relief against the defendants William Murray and Julia E. Murray, now holding legal title to the property omitted by mistake from the deed to Mrs. Burke. Admittedly they cannot prevail if these defendants stand in the position of bona fide purchasers for value and without notice. In case of mutual mistake, relief is afforded against those who claim under the grantor except against those who by reason of being bona fide holders for value without notice have an equity superior to the grantee. Rumrill v. Shay, 110 Mass. 170;Wilcox v. Lucas, 121 Mass. 21;Livingstone v. Murphy, 187 Mass. 315, 72 N. E. 1012,105 Am. St. Rep. 400;Hillside Co-operative Bank v. Cavanaugh, 232 Mass. 157, 122 N. E. 187;Jeselsohn v. Park Trust Co., 241 Mass. 388, 135 N. E. 315.

This principle must be applied to the facts in this case. The plaintiffs' grantors, claiming under Patrick McLaughlin, deceased, owned land on Paul Gore street and Chestnut avenue in that part of Boston known as Jamaica Plains. McLaughlin got title in 1897 from a grantee of Charles Molé, and at that time there was on the property, at the corner of these streets and fronting on Paul Gore street, a block of dwellings numbered 113, 115, 117, on that way. This is now claimed by the plaintiffs and herein is called the Murray house. McLaughlin erected a three-family house facing on Chestnut avenue and numbered 139 thereon, which is now owned by the defendants Burke, and herein is designated by that name. Molé acquired title by two deeds, the first conveying the southeasterly part of corner lot numbered 26 on a duly recorded plan, and the second including the southeasterly part of lot numbered 25 on the same plan which was situated southwesterly of and adjoining the lot first conveyed to him. Lot 25 had a frontage of 50 feet on Chestnut avenue and lot 26 was 43.40 feet wide where it bounded thereon. Molé in his deed, and his grantee in the deed to McLaughlin, described the land as two separate parcels, and both deeds followed the description in the deeds to Molé. The dwelling houses fronting on Paul Gore street were erected in disregard of the dividing line between lots numbered 25 and 26. The structures, which were mostly upon lot numbered 26, overlapped upon the other lot by a few feet. Molé also constructed on lot 25 an asphalt walk from Chestnut avenue, which was designed and used for access only to these buildings. After McLaughlin built the house on Chestnut avenue, he constructed a walk along the side of that building away from the house on the corner. He also built a strong and permanent wire fence between the buildings. This fence extends from the rear of his land toward Chestnut avenue to a point near the rear corner of the Murray building, and it is on a line which, if continued, would clear the Murray house by about 3 feet and join the line of the avenue substantially at a point coterminus with the street end of the southwesterly line of the asphalt walk. The fence was without openings or gate. It was on lot numbered 25, distant about 12 feet from its northeasterly boundary. McLaughlin, and those claiming under him as his heirs or devisees, until the giving of the deed to Mrs. Burke used the land between the fence and the line of its extension and Paul Gore street in connection with other occupants of the block on that street, to the exclusion of those who occupied the Murray premises. Those claiming under McLaughlin as his heirs or devisees built a small outbuilding, which stood almost wholly on lot numbered 25, and erected clothes drying yards with posts and crossbars extending to the line of the fence. There was no way of getting to the rear of the premises numbered 115, 117, Paul Gore street, other than the walk between the property now of Burke and that of Murray. There was no door upon the side of the Murray house, adjoining the land of Burke, and the walk on the other side always has been the sole means of access to the rear of the Murray house.

When Mrs. Burke agreed to buy the corner property...