George Goodenough v. Donald Mcgregor, Admr.,

• Decision Date: 05 November 1935
• Citation: 181 A. 287,107 Vt. 524
• Parties: GEORGE GOODENOUGH ET AL. v. DONALD MCGREGOR, ADMR., ET AL
• Court: Vermont Supreme Court

181 A. 287

107 Vt. 524

GEORGE GOODENOUGH ET AL. v. DONALD MCGREGOR, ADMR., ET AL

Supreme Court of Vermont

November 5, 1935

October Term, 1935.

Effect of Failure to Find Fraud on Decree for Plaintiff in Equity Suit Based on Fraud---Defendants Entitled to Rely on Issues Made by Pleadings---Statement of Facts Not to Be Enlarged or Supplemented---Decree Not in Accord with Issues and Not Warranted by Findings---Latent Ambiguity, Description in Deed to Be Incorporated in Findings---No Recovery on Case Not Made by Bill---Latent Ambiguity, Proof by Extrinsic Evidence.

1. Where bill in equity sought either to cancel a deed because of fraudulent misrepresentations of grantor or to reform deed because of mistake of grantee as to boundaries of property induced by fraud of grantor, and there was no finding that the grantor made any fraudulent representations to the plaintiffs or that he induced them to believe that the boundary was elsewhere than as described in the deed, held that the findings as made did not conform to the issues presented by the pleadings.

2. In suit in chancery defendants are entitled to rely upon issues made by the pleadings, and findings that do not conform thereto are not binding

3. In suit in chancery tried upon theory that there is a latent ambiguity in a deed, where deed is not made a part of findings, though introduced in evidence, statement of facts cannot be enlarged or supplemented on appeal by reference to deed.

4. Decree in suit in chancery held erroneous as not in accord with issues made by pleadings and not warranted by findings.

5. In suit in chancery, tried upon theory that there is a latent ambiguity in a deed, findings which do not contain the description in the deed are insufficient, since without such description the existence of the ambiguity cannot be ascertained.

6. Plaintiffs in suit in chancery cannot recover on a case not made by their bill; though remedy may be open to them upon proper allegations and proper proof, they must amend their bill.

7. If there is in fact a latent ambiguity in a deed, this may be explained by extrinsic evidence.

APPEAL IN CHANCERY. Bill seeking to cancel deed because of fraudulent misrepresentations, or to reform deed because of mistake of grantees induced by fraud of grantor. Answer denying allegations as to fraud. Heard on pleadings and on evidence presented at the June Term, 1934, Caledonia County Buttles, Chancellor. Decree establishing line. The defendants appealed and filed bill of exceptions. The opinion states the case. Reversed and remanded with leave to the plaintiffs to apply for permission to amend, or for a transfer to a court of law, as they may be advised.

Decree reversed, and cause remanded with leave to the plaintiffs to apply for permission to amend, or for a transfer to a court of law, as they may be advised.

S.E Richardson and Searles & Graves for the defendants.

James B. Campbell and Shields & Conant for the plaintiffs.

Present POWERS, C. J., SLACK, MOULTON, THOMPSON, and SHERBURNE, JJ.

OPINION

MOULTON

This cause comes before us on the defendant's appeal from a decree of the court of chancery. There is also a bill of exceptions, challenging certain findings of fact as being unsupported by the evidence, and certain evidence as inadmissible.

The bill alleges that in 1928 George N. Roberts, the defendant's intestate, was the owner of the Aldrich farm in the town of St. Johnsbury, and agreed to sell a part of it to the plaintiff W. W. Goodenough, and in the course of the negotiations pointed out to him the westerly line of the land about to be con- veyed, which included a part of the sugar place, and the sugar house; that there was then standing another sugar house, owned by Roberts, westerly of the indicated boundary line, which the plaintiffs believed to be the sugar house mentioned in the deed from Roberts to them, east of which the line was described in the deed as being located. It is charged that Roberts knew that the westerly line described in the deed was not the line that he pointed out, and, intending that the plaintiffs should be misled by the description, caused the line to be set forth in the deed as being easterly of the sugar house, with the intention of defrauding the plaintiffs by giving them to understand and believe that the sugar house referred to was the one standing upon the other property owned by Roberts and not the one upon the Aldrich farm; that the plaintiffs, so understanding and believing, purchased the land and paid Roberts the sum of $ 800 as the purchase price, and had no knowledge that Roberts or his representatives claimed to own any land on the Aldrich farm east of the line pointed out to them, until, in 1933, the defendants constructed a fence across the lot, from north to south, easterly of the Aldrich sugar house. The...