Lazenby v. F. P. Asher, Jr. & Sons, Inc.

• Decision Date: 10 November 1972
• Docket Number: No. 33,33
• Citation: 266 Md. 679,296 A.2d 699
• Parties: F. Marion LAZENBY et al. v. F. P. ASHER, JR. & SONS, INC.
• Court: Maryland Court of Appeals

Page 679

266 Md. 679

296 A.2d 699

F. Marion LAZENBY et al. v. F. P. ASHER, JR. & SONS, INC.

No. 33.

Court of Appeals of Maryland.

Nov. 10, 1972.

Richard N. Hambleton, Annapolis, for appellants.

Ronald A. Baradel, Annapolis (Hartman & Crain, Annapolis, on brief), for appellee.

Argued before MURPHY, C. J., and BARNES, SINGLEY, SMITH and LEVINE, JJ.

SMITH, Judge.

Appellants, F. Marion Lazenby et al., (Lazenby) seek reformation of a 1956 deed from appellee, F. P. Asher, Jr. & Sons, Inc. (Asher). Judge Sachse held in the Circuit Court for Anne Arundel County that they had not met their burden of proof. We agree.

The Lazenby group described themselves in the bill of complaint as 'sole Stockholders, Principals, Officers, Directors and Trustees, surviving or otherwise of L. J. & P. Realty, Inc.' (L. J. & P.), formerly a body corporate of the State of Maryland.

L. J. & P. bought land in Annapolis, a part of which was located on McGuckian and Park Avenues. The dispute here involves Lot 18 and part of Lots 3 and 17 of Block G on a plat of the McGuckian subdivision shown with hatch marks on the plat attached to this opinion which the reporter is directed to reproduce. The deed conveyed two separate parcels of land. It referred to the land as having been 'surveyed by J. R. McCrone, Jr., Inc. Registered Engineers and Land Surveyors, in November 1956.' Two plats were attached to and recorded with the deed. Both are by McCrone with a November, 1956, date. The job order number of McCrone shown on the plat involving the second parcel corresponds with tht appearing on the job order to which we shall later make reference. Both parcels of land were described in the deed by metes and bounds, courses and distances. The dispute here involves the second parcel. The plat here reproduced is a copy of one of the plats attached to the deed except that we have drawn in the eastern boundary lines of Lots 3 and 18, the extention of the back line of those lots, and the hatch marks. The description in the second parcel of the F. P. Asher, Jr. & Sons, Inc. . . . That parcel is stated to be 'all of Lots 4, 5, 6, 7, 14, 15 and 16 and part of Lots 3, 17, and 18, Block G as shown on the' plat of the McGuckian subdivision to which reference was made in the description. The back reference for the second parcel stated that it was part of one conveyance to Asher (which it was) 'and all of the conveyance from George McGuckian et al to F. P. Asher, Jr. & Sons, Inc. . . . dated January 31, 1951 and recorded among the said Land Records in Liber J. H.H. 610, folio 347,' which it was not since that conveyance included that part of Lot 3 here in dispute and all of Lots 17 and 18, portions of which are also in dispute.

It is the contention of the Lazenby group that L. J. & P. was to have conveyed to it all of Lots 3, 17, and 18. They seek the reformation of the deed accordingly. This action was filed in 1970.

We are advised that the background of this transaction is that three Annapolis professional and businessmen formed L. J. & P. to buy land then owned by Asher. They knew that a bank wished to buy a part of Asher's property and they knew that Asher desired to leave Annapolis. The ownership and management of Asher has changed since 1956.

Louis N. Phipps, one of the principals of L. J. & P., testified that the existence of this triangular strip was discovered back about 1964 or 1965, stating 'It came directly to my attention when the American Legion had a buyer for their property and I believe Weidemeyer was their attorney . . . and the American Legion had a contract of sale to the buyer, this buyer found out after it was surveyed it didn't belong to the American Legion, it belonged to Asher or belonged to us because it was part of our property.'

The American Legion post owned land immediately to the east of Lot 18.

There was a contract of sale between Asher and L. J. & P., but no one was able to produce the contract, nor did anyone relate precisely what the contract said. The survey was procured by David Jenkins, another appellant and a member of the Lazenby group. The job order of the surveyor was introduced into evidence. It read in part as follows:

'Location of Property: McGuckian Estates subdivision Block D; Block G 3 to 7, 14 to 18.

'Work to be done: Survey part of Prop. as instructed by Rullman (10/26/56 Survey all of Prop. and set monuments at all corners.) SPD of area for Co. Trust.

'Coordinate: Letter: City I; Number: 17; Price Quoted.

'Remarks: L. J. & P. Realty Co. is buying Asher & selling part.'

Rullman was the attorney for L. J. & P. who prepared the deed. He did not testify.

The evidence of Lazenby included the fact that a realtor wrote a comprehensive letter of valuation as to the Asher land to one of the appellants which particularly described by words and by a sketch plat Asher's property which included the property here in dispute, that immediately prior to the deed from Asher to L. J. & P. a partial release of a mortgage on Asher's land in Anne Arundel County was executed which release included the disputed land as well as that described in the deed, and that after the recordation of the deed in question the disputed area disappeared from the assessment and tax rolls of Anne Arundel County.

The chancellor found as a fact that at the time of the conveyance neither party knew that Asher owned the land, that L. J. & P. received the acreage it intended to receive in the transaction 'regardless of whether or not it was all of the land owned by the seller,' that the running of the diagonal line through Lots 3, 17, and 18 was intentional and not due to mistake, and that the intention was to convey part and not all of the lots.

Under Maryland Rule 886 when we review a case tried without a jury the judgment of the lower court is not to be set aside on the evidence unless clearly erroneous and due regard is to be given to the opportunity of the lower court to judge the credibility of the witnesses. In the ordinary civil action the burden of the plaintiff is to prove his case by a preponderance of the evidence. In a case such as this to reform a deed, however, the burden is even higher since '(n)ot only must a mutual mistake be shown, but the precise agreement which the parties intended but failed to express must be proven beyond a reasonable doubt.' Housing Equity Corporation v. Joyce, 265 Md. 570, 581, 290 A.2d 769, 775 (1972), and cases there cited. In fact, Judge Mitchell for our predecessors in Brockmeyer v. Norris, 177 Md. 466, 473, 10 A.2d 326 (1940), quoted 2 Pomeroy, Equity Jurisprudence § 859 at 1756-1757 (2d ed. 1892), which read the same as 3 Pomeroy, Equity Jurisprudence, § 859a (5th ed. Symons 1941). The latter work states:

'The authorities all require that the parol evidence of the mistake and of the alleged modification must be most clear and convincing,-in the language of some judges, 'the strongest possible,'-or else the mistake must be admitted by the opposite party; the resulting proof must be established beyond a reasonable doubt.

Courts of equity do not grant the high remedy of reformation upon a probability, nor even upon a mere preponderance of evidence, but only upon a certainty of the error.' (Emphasis the author's.) Id. 353-354.

To the same effect see the other cases and authorities cited by Judge Mitchell. Pomeroy goes on in the same section to state that although 'it has been said that the evidence or the inferences to be drawn from the evidence must be clear, clear and satisfactory, clear and convincing, clear, convincing and unequivocal, full, clear, and decisive, strong and most satisfactory, and the like,' which 'such expressions obviously convey the same meaning,' that '(t)he words 'beyond a reasonable doubt' or 'reasonable controversy,' used in some of the cases, are not to be interpreted in the sense that 'beyond a reasonable doubt' is employed in the criminal law. Such expressions form no rule of law to direct courts.'

Lazenby here seizes upon the difference between the description and the 'being' clause since the latter recited that the land being conveyed was 'all' of the land described in a deed from McGuckian to Asher, when in fact all of that land was not embraced in the description.

Some of the rules for construction of deeds were summed up for the Court by Chief Judge Brune in Adams v. Parater, 206 Md. 224, 111 A.2d 590 (1955):

'(U)nless some positive rule of law is contravened, every part of a deed is to be given effect, if possible, and the intention of the parties must prevail.' (Citing cases.) Id. at 231, 111 A.2d at 593.

'A construction of one...