Curran v. Magee

Decision Date26 January 1923
Citation244 Mass. 1,138 N.E. 1
PartiesCURRAN v. MAGEE et al.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court


Appeal from Superior Court, Bristol County; Henry T. Lummus, Judge.

Suit by Margaret E. Curran against John F. Magee and another. From a final decree dismissing the bill, plaintiff appeals. Reversed, and decree entered.

The bill sought to compel defendants to execute and deliver to plaintiff a conveyance of all their right, title, and interest in real estate therein described. It was taken pro confesso against the defendant Mary E. Ryan. The defendant Magee by his answer put in issue material allegations of the bill and pleaded the statute of frauds. The court made findings of fact with a view to presenting the facts upon an appeal, in which the facts as to the conveyance to plaintiff and the mistake therein were found as stated in the opinion. In its rulings of law the court ruled that plaintiff was barred by the statute of frauds, unless there was part performance, and that there was no sufficient part performance.

W. S. Woods and S. P. Hall, both of Taunton, for appellant.

Richard P. & Leo H. Coughlin, of Taunton, for appellees.


The mother of the parties, Mary Magee, an aged woman, who owned two adjoining parcels of land with a house on each, conveyed on January 18, 1910, for a valuable consideration, one parcel to her daughter, the defendant Mary E. Ryan. And having determined to transfer the remaining lot to the plaintiff ‘because of the care and some degree of support * * * voluntarily furnished * * * without any contract or expectation of payment,’ she executed September 1, 1911, a deed of that lot. It is found on evidence not reported that the grantor ‘felt a natural obligation to compensate the plaintiff and also’ made the conveyance ‘because of * * * maternal love and affection. * * *’ A further finding follows, that one motive of the grantor was ‘to dispose of her property before her death, she having no property except said remaining lot.’ By mistake she gave to counsel employed by her to draft the instrument ‘an old deed, the description in which was that of the lot previously vonveyed to Mary E. Ryan.’ The erroneous description was adopted in the deed to the plaintiff, which the grantor delivered to the draftsman with directions to have it recorded ‘for the plaintiff.’ The plaintiff shortly thereafter, upon being informed by her mother of what had been done, assented, and accepted the property. It is plain that the parties to the deed believed that the remaining land had been conveyed in accordance with the purpose of the grantor to distribute the remainder of her estate. The grantor died intestate September 23, 1911, leaving as her only heirs two daughters, Margaret E. and Mary E. Ryan, and two sons, John F. Magee, the defendant, whose brother subsequently died unmarried and intestate. The plaintiff, ignorant of the mistake, which was not discovered until 9 years thereafter, entered on, and has remained in possession of the premises ever since, making repairs and improvements, paying the taxes and collecting the rent. The bill asks that the defendants may be ordered to execute and deliver to the plaintiff a valid deed conveying all their right, title and interest in and to the real estate erroneously described in the deed. A mutual mistake is clearly shown and ordinarily the plaintiff would be entitled to relief. Page v. Higgins, 150 Mass. 27, 30, 31, 22 N. E. 63,5 L. R. A. 152;Gaylord v. Pelland, 169 Mass. 356, 47 N. E. 1019;Eustis Manuf. Co. v. Saco Brick Co., 198 Mass. 212, 84 N. E. 449, and cases there collected.

But while the defendant Ryan makes no contest, and the bill as to her has been taken for confessed, the defendant Magee having failed in his defense that there was no mistake, further contends that the plaintiff being a volunteer, and not a purchaser for value, rectification is barred by the statute of frauds, which is pleaded in the answer. Sunter v. Sunter, 190 Mass. 449, 454, 455, 77 N. E. 497, and cases cited. The defendant is an heir at law of the grantor by whom the error in the description was made, which he now asserts deprives the plaintiff of the estate her mother intended to convey and believed she had conveyed. It is clear on the record that the plaintiff's occupation began shortly after her mother's death and had continued uninterruptedly for more than 9 years, when the defendant apparently challenged her title. It is found that she has painted the outside of the house, shingled it, papered and painted it inside, put a cellar under it, and connected it with the sewer, and the property is in a better condition than it was in when the grantor died. It also appears that she has paid the taxes for 11 years, including the year when the present suit was begun. The total expenditures were $1,544.13, and she has collected rents amounting to $1,468. If the defendant succeeds, she has no lien on his interest as a cotenant for taxes paid, because the certificate required must be filed within 30 days after payment of the tax, and a bill in equity brought to enforce the lien within 60 days from the date of recording the certificate. St. 1909, c. 490, pt. 2, §§ 74, 75; G. L. c. 60, §§ 85, 86. The defendant also can bring a writ of entry, or petition for partition, and the plaintiff could recover compensation for the improvements subject to deduction for mesne profits, or any ‘benefit received from the common land.’ G. L. c. 237, §§ 16-20; Id. c. 241, § 23; Sunter v. Sunter, 190 Mass. 449, 456, 77 N. E. 497;Backus v. Chapman, 111 Mass. 386.

But, even if referred to, these considerations are not of primary importance. The question is not what the plaintiff's rights and remedies may be if the defendant prevails. It is whether she has made out her claim to absolute ownership. While the defendant with constructive notice of the recorded deed, and knowing that she was in possession, remained silent, the plaintiff paid the taxes, made the changes and improvements which have enhanced the value of the property, in the honest belief that she was the sole owner. It is true that she collected the rents, yet quite apart from any question of interest, the amount is insufficient to cancel completely the disbursements. The plaintiff was induced to take possession and make substantial improvements in reliance upon what her mother had said and done, that she was to have the land and a deed conveying it to her had been prepared, executed, delivered and recorded. It cannot be assumed that even if she had been informed, or even suspected, that the defendant would take the position that her title was only that of a tenant in common she would have made the outlays and managed and used the property as described, thereby subjecting herself to the delays, uncertainties and expenses of vexatious litigation. It is immaterial, if part performance is shown, that the land was a...

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27 cases
  • Young v. Reed
    • United States
    • Appeals Court of Massachusetts
    • 25 Enero 1978
    ...Low v. Low, 173 Mass. 580, 582, 54 N.E. 257 (1899). Williams v. Carty, 205 Mass. 396, 397-400, 91 N.E. 392 (1910). Curran v. Magee, 244 Mass. 1, 5-6, 138 N.E. 1 (1923). Andrews v. Charon, 289 Mass. 1, 3-4, 193 N.E. 737 (1935). Nichols v. Sanborn, 320 Mass. 436, 438, 70 N.E.2d 1 (1946). Wins......
  • Hickey v. Green
    • United States
    • Appeals Court of Massachusetts
    • 14 Enero 1983
    ..." Winstanley v. Chapman, 325 Mass. 130, 133, 89 N.E.2d 506 (1949); Park, Real Estate Law, § 883 (1981). See also Curran v. Magee, 244 Mass. 1, 4-6, 138 N.E. 1 (1923); Chase v. Aetna Rubber Co., 321 Mass. 721, 724, 75 N.E.2d 637 (1947). Compare Gadsby v. Gadsby, 275 Mass. 159, 167-168, 175 N......
  • Forman v. Gadouas
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 3 Enero 1924
    ...drawn by the judge. Glover v. Waltham Laundry Co., 235 Mass. 330, 334, 127 N. E. 420, and cases there collected; Curran v. Magee, 244 Mass. 1, 5, 138 N. E. 1. The facts found by the master do not warrant the inferences that it would be ‘unreasonable and oppressive’ to require the defendant ......
  • Parker v. Page
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 29 Enero 1930
    ...N. E. 90;People's Express, Inc., v. Quinn, 235 Mass. 156, 159, 126 N. E. 423;Mason v. Albert, 243 Mass. 433, 137 N. E. 661;Curran v. Magee, 244 Mass. 1, 138 N. E. 1. In the case at bar the plaintiffs did not pay the purchase price but only a comparatively small partial payment, and they mad......
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