Hitchcock v. Kennison

• Decision Date: 04 October 1921
• Citation: Hitchcock v. Kennison, 95 Vt. 327, 115 A. 156 (Vt. 1921)
• Parties: CHARLES W. HITCHCOCK v. GEORGE KENNISON
• Court: Vermont Supreme Court

115 A. 156

95 Vt. 327

CHARLES W. HITCHCOCK v. GEORGE KENNISON

Supreme Court of Vermont

October 4, 1921

February Term, 1921.

APPEAL IN CHANCERY. Bill to reform a deed on the ground of mistake and for an injunction to restrain the defendant from prosecuting an action at law on the covenants of the deed. Heard on the pleadings and a special master's report at the September Term, 1909, Orleans County, Hall, Chancellor. Decree for the plaintiff in accordance with the prayer of the bill. The defendant appealed. The opinion states the case.

Decree reversed, and cause remanded with leave to plaintiff to apply to amend the bill in the particulars referred to in the opinion. When so amended, let the plaintiff have decree in accordance with the views therein expressed. Let the defendant recover costs in this Court, the costs below to be there determined.

Frank D. Thompson and Frank S. Rogers for the defendant.

O S. Annis and Searles & Graves for the plaintiff.

Present WATSON, C. J., POWERS, TAYLOR, JJ., and FISH and CHASE, Supr. JJ.

OPINION

TAYLOR

The bill is brought to reform a deed from the plaintiff to the defendant and for an injunction to restrain the defendant from prosecuting an action at law on the covenants of the deed. The cause was heard in the lower court on the pleadings and the report of a special master. The plaintiff had a decree in accordance with the prayer of the bill, and the defendant appeals.

The plaintiff acquired the premises in question April 30, 1886 from I. D. and Orphia Bean. They consisted of a house, barn, and about forty-nine acres of land. In November, 1887, by warranty deed the plaintiff conveyed the house and one-half acre of land (called in the master's report the half-acre piece) to Burton Kennison, a brother of the defendant, who held the title and lived there for about seven and one-half years. The half-acre piece was conveyed to one Besaw in August, 1897, who, in turn conveyed the same to Moses Kennison, the father of the defendant, in December, 1899. On December 11, 1895, the plaintiff executed a mortgage of the entire premises conveyed to him by the Beans, with certain other real estate, to one Macomber to secure a debt of $ 1,100; and on January 22, 1900, by deed with full covenants of warranty, he conveyed to the defendant the same premises described in his deed from the Beans, excepting neither the half-acre piece nor the Macomber mortgage, which remained a lawful incumbrance on the premises so far as concerned the interests of the plaintiff and defendant. January 10, 1902, the defendant brought his action against the plaintiff for breach of warranty in respect of the Macomber mortgage and the conveyance of the half-acre piece to Burton Kennison. It is to reform the deed in these respects that this bill was then brought. January 23, 1902, the plaintiff procured a discharge of the Macomber mortgage, which was duly executed, but has never been recorded. The master finds that, so far as appeared, the defendant had no knowledge of the discharge, other than what appears in the bill, until some time during the hearing.

The plaintiff bases his claim for relief upon the ground of mistake, and claims that shortly before the deed to the defendant was executed and delivered he bargained with the defendant to sell and convey to him all of the premises described in plaintiff's deed from the Beans, except the half-acre piece previously sold to Burton Kennison, for the sum of $ 850; that the defendant was to pay $ 100 in cash and the balance in annual installments of $ 50 and interest, secured by mortgage back on the premises; that it was then fully understood that the Macomber mortgage was a lien on the premises, and it was agreed that the incumbrance was to remain, and as fast as the defendant paid his mortgage notes, the plaintiff was to apply the payments to reduce the Macomber mortgage, and when the defendant's mortgage was satisfied the plaintiff would have the premises released from the mortgage to Macomber. It is left to be inferred that the defendant failed to meet the payments on his mortgage. The decree is "in accordance with the prayer of the bill," which asks, among other things, that the defendant be enjoined from prosecuting his action on the covenants of his deed, and from bringing any other action thereon, or from setting up any defences on account thereof "to the foreclosure suit now brought" by the plaintiff.

The master failed to find that the plaintiff was entitled to relief in reference to the covenant against incumbrances, but found that nothing was said by the plaintiff to the defendant with relation to the Macomber mortgage and that the defendant had no knowledge of it. In the circumstances, it was clearly error to decree a reformation of the deed in accordance with the prayer of the bill in this regard, and an injunction restraining the defendant from asserting any claim for damages for breach of the covenant against incumbrances. All that the plaintiff says in his brief in respect of this matter is that the error, if any, is immaterial, and should not affect the result of this suit, particularly since the suit at law has since been discontinued. The record is silent as to a discontinuance. However, the docket entries in this case show the death of the plaintiff suggested, and that the case is now being prosecuted by his administrator. It is entirely probable that the action at law was discontinued by the appointment of commissioners, in which case the defendant would be entitled to present a claim for costs, if only for nominal damages. G. L. 3305. This, the defendant is restrained from doing by the decree appealed from. It follows that the decree on this branch of the case cannot be sustained on any equitable ground.

The principal question on the trial below and the hearing here is whether the plaintiff is entitled to relief on account of the half-acre piece. As to this, the master finds in his original report in substance as follows: Before the Beans bought the premises later conveyed to the plaintiff they were known as the "Bertrand farm" or "Bertrand place", and after the sale of the half-acre piece by the plaintiff, people in that vicinity who knew of the sale referred to the remainder of the premises by the same name. The negotiations between the plaintiff and defendant occurred about a week before the deed was executed. The subject of the trade was introduced by the plaintiff, who asked the defendant why he did not buy the Bertrand place. After some negotiations the terms were agreed upon and a day appointed for making the papers. In these negotiations nothing was said about the house and half-acre of land. For reasons stated in detail, the master reported that he was thoroughly convinced that at the time of the oral contract, the defendant must have known that the term, "The Bertrand place", did not include the half-acre piece. On the day the deed was executed the plaintiff and defendant went to the office of the town clerk of Troy, when the plaintiff produced his deed from the Beans and told the clerk to make a deed and mortgage from that. In accordance with this instruction, the clerk made a deed from the plaintiff to defendant, following the description in the Bean deed, and a mortgage back on the premises from the defendant to the plaintiff. Before their execution, the deed and mortgage were read over to the parties, and neither expressed any dissatisfaction with the papers as drawn. Nothing was said by any one on this occasion about the half-acre piece. The plaintiff then knew, or ought to have known, that the house and half-acre of land were included in the Bean deed. Knowing that he had deeded the half-acre piece years before, not being experienced in conveyancing, and relying upon the town clerk to make such a deed as would convey just what he had sold to the defendant, the plaintiff did not notice or understand that the half-acre piece was included. In this connection, the master reports that no fraud was practiced by either party upon the other.

Upon the cause being recommitted to the master for further findings, no additional testimony was offered, but counsel were fully heard in argument on the questions submitted. Thereupon, "after a careful consideration of the evidence" the master reported: "I am well satisfied and find that in the purchase made by the defendant of the orator the defendant knew and understood that it did not include the half-acre piece"; and further: "From all the evidence I am thoroughly convinced that the one-half acre piece was included in the deed by mistake of the orator and either by the mistake of the defendant or by his fraud in knowing it was included, and not making it known to the orator, who he knew did not suppose it was included, and I am unable to say which by measure of proof required in this sort of a case...