Peck v. Lee

• Decision Date: 06 January 1930
• Citation: 148 A. 133,110 Conn. 374
• Court: Connecticut Supreme Court
• Parties: PECK v. LEE.

148 A. 133

110 Conn. 374

PECK v. LEE.

Supreme Court of Errors of Connecticut.

January 6, 1930

Appeal from Court of Common Pleas, New Haven County; Walter M Pickett, Judge.

Action by Harvey S. Peck against Lewis W. Lee for an accounting, for the release of a mortgage, and for other relief.Judgment for plaintiff, on trial to the court, and defendant appeals.No error.

Robert J. Woodruff and John G. Confrey, both of New Haven, for appellant.

Claude B. Maxfield, of New Haven, for appellee.

Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS JJ.

MALTBIE, J.

This appeal raises two questions.One grows out of the overruling by the court of the defendant's claim that he holds title to the lot of land in question.A tract 150 feet long on the northerly side of Atwater street had come by devise from her husband to Fanny J. Lee.She conveyed a lot at the east end of the tract 37 1/2 feet wide to one Krafeik, a lot 42 1/2 feet wide at the west end to a daughter Rhoda Peck, and a lot, next the one conveyed to Krafeik, 35 feet wide to the defendant, a son.There remained a lot 35 feet wide, and this she attempted to convey to her daughter Rhoda.She bounded it correctly as to the front and rear and correctly stated its width, but she mistakenly bounded it on the east upon the land of the defendant and on the west upon the land of Krafeik.Thereafter Rhoda Peck died and the land was distributed to the plaintiff, her husband.He discovered the errors in the description and brought an action against Fanny J. Lee seeking to correct it so as accurately to bound the land and ultimately secured judgment.While the action was pending, the defendant learned of it and obtained from Mrs. Lee a quitclaim deed of the lot upon the strength of which he now claims title.Despite the misdescription in Mrs Lee's deed to her daughter, when it is read in the light of the surrounding circumstance there could be no doubt of the precise lot of land she intended to convey and the deed was not void for uncertainty.Brooks Bank & Trust Co. v. Dineen,97 Conn. 536, 539, 117 A. 551;Sherwood v. Whiting,54 Conn. 330, 333, 8 A. 80, 1 Am.St.Rep. 116;Scofield v. Lockwood,35 Conn. 425, 428;2 Devlin, Real Estate(3d Ed.) § 1012;2 Tiffnay, Real Estate (2d Ed.)p. 1669.As against her, the plaintiff had an equitable right to have the deed corrected so as properly to describe the tract.The defendant, who gave no consideration for the deed to him and took it with notice, is certainly in no better situation.The trial court was right in holding that the deed to the defendant conveyed no title to the lot.

The other question arises out of a claim of the defendant that he owns a mortgage for $700 which binds the lot in question.When Mrs. Lee's husband bought the tract of land and when she inherited it, this mortgage was upon it.When Mrs. Lee conveyed the lot at the easterly end of the tract to Krafeik she obtained a release of that land from the mortgage.In 1912, to relieve her of the interest charges and after a family conference, another son of Mrs. Lee, Burton, acquired the mortgage.A house then stood on the lot at the westerly end of the tract, and Mrs. Lee made her home there with her daughter Rhoda and the plaintiff.When she quitclaimed this lot to her daughter, in the same year Burton Lee acquired the mortgage, he at her request and with the defendant's knowledge released the premises from the mortgage.In 1917 Mrs. Lee made the quitclaim to the defendant of the lot next that of Krafeik, there being no consideration for it except such sums as he had contributed to his mother's support.In 1919 came the conveyance of the lot in question to Rhoda Peck, without consideration.Later in the same year Burton Lee assigned the mortgage and note without recourse to the defendant, he paying $400 therefor.The note then bore indorsements indicating that no payment had been made on the principal, but that the interest had been paid to date.As a matter of fact neither Rhoda Peck nor the defendant had made any payments of interest on it.Although after 1919Rhoda Peck by reason of her ownership of the lot in question was the only person who could be obligated to pay interest on the mortgage, she did not up to the time of her death in 1927 make any such payments, nor did the defendant make any demand on her for them.After her death the defendant presented a claim upon her estate for a certain sum due upon a note other than that secured by the mortgage, and this claim was allowed and paid; but he made no...