Monet v. Merritt, 13-77

• Decision Date: 06 June 1978
• Docket Number: No. 13-77,13-77
• Citation: 388 A.2d 366,136 Vt. 261
• Parties: Anna MONET v. Charles MERRITT.
• Court: Vermont Supreme Court

Page 366

388 A.2d 366

136 Vt. 261

Anna MONET v. Charles MERRITT.

No. 13-77.

Supreme Court of Vermont.

June 6, 1978.

Divoll & Doores, P. C., Bellows Falls, for plaintiff.

Parker & Lamb, Ltd., Springfield, for defendant.

Before BARNEY, C. J., and DALEY, LARROW, BILLINGS, and HILL, JJ. DALEY, Justice.

The parties to this action are adjoining land owners who could not agree as to the location of their common boundary line. In a petition for declaratory judgment the plaintiff requested the superior court to determine the true boundary line. The property claimed by the plaintiff was surveyed by Southern Vermont Surveys of Chester, Vermont, and a copy of the survey dated September 16, 1970, and entitled "Property of Anna and Augusta Monet" was introduced into evidence as Plaintiff's Exhibit 1. Upon conflicting evidence the trial court in its conclusions and judgment order determined that Plaintiff's Exhibit 1 correctly set forth the boundaries of plaintiff's property located on the westerly side of Route 11 in the Town of Londonderry, including the disputed common boundary line. In addition the judgment order directed that a copy of the exhibit be filed in the office of the Londonderry Town Clerk.

The defendant by his appeal seeks to have us overturn the judgment on two principal grounds. The first is based on the premise that plaintiff's action was one for reformation of a deed. In this regard defendant alleges error in the plaintiff's failure to establish her claim by proof beyond a reasonable doubt and in the court's failure to affirmatively find that plaintiff had met this burden of proof, citing Kilcullen v. Dery, 133 Vt. 140, 142-43, 334 A.2d 410, 412 (1975). As a second ground defendant asserts that the court's findings are inconsistent with the rules governing the construction of deeds. Defendant also argues that the court erred in admitting Plaintiff's Exhibit 1. We disagree on all points and affirm.

Defendant's argument concerning the admission of Plaintiff's Exhibit 1 is easily disposed of and will therefore be addressed first. Defendant claims the document was insufficiently verified and therefore improperly admitted. Verification is a preliminary question of fact largely within the discretion of the trial court and is ordinarily not reviewable. Taylor v. Henderson, 112 Vt. 107, 120, 22 A.2d 318, 325-26 (1941). In the absence of any indication that the trial court acted for reasons clearly untenable or to an extent clearly unreasonable, we find no abuse of discretion in the record before us. Nichols v. Nichols, 134 Vt. 316, 318, 360 A.2d 85, 86 (1976).

Before proceeding to the major aspects of defendant's appeal, a short factual summary is in order.

Prior to March 2, 1843, one Frederick Smith was the owner of the so-called Shattuck Farm. On that date he conveyed to the defendant's predecessor in title, one Thomas Smith, the northern portion of the farm described in the deed as follows:

all of the North part of the Shattuck farm on that part that I have not deeded this day to Wait and Andrews and for a more particular description reference can be had to said deeds one from Frederick Smith to Wait and Andrews and the other from Calvin Aiken to Frederick Smith.

The deed to Wait and Andrews, mentioned in the Frederick Smith to Thomas Smith deed and dated March 2, 1843, described the land conveyed by metes and bounds as follows:

Beginning at a corner near the school house in the seventh school district in said Londonderry, then running North sixty five degrees West sixty two rods, thence North eight degrees West forty two rods, thence North 41 degrees East thirty three and a half rods, thence North thirty degrees East about twenty three rods to the North East corner of Amaziah Howard Aiken farm so-called thence Easterly about one hundred rods to the North end of a wall in the West line of the Com 1 land so-called to a corner, thence Southerly to the East Bar Post on the Stage road a corner, thence Westerly on the Stage Road and Amaziah Howards North line to said Howards North West Corner, thence Southerly on said Howards to the Stage road, then on the said Amaziah Howard land to the first mentioned bounds.

The plaintiff is the successor in title to this parcel of land. The location of the boundary between the property described in the Frederick Smith to Thomas Smith deed and that described in the Frederick Smith to Wait and Andrews deed is the line in dispute.

As he did at trial below, the defendant now asserts that the description by courses and distances set forth in the deeds of record are unambiguous and therefore must control. Under this interpretation, defendant would hold record title to a portion of the land claimed by plaintiff. The plaintiff counters by arguing that, in addition to the courses and distances description, the deeds of record contain descriptions by reference to monuments and adjoining property lines which control over conflicting courses and distances.

Contrary to the assertions made by the defendant, the evidence supports the trial court's...