Sampson v. Mudge

• Decision Date: 22 August 1882
• Citation: 13 F. 260
• Parties: SAMPSON v. MUDGE and others.
• Court: U.S. District Court — District of Massachusetts

13 F. 260

SAMPSON v. MUDGE and others.

United States Circuit Court, D. Massachusetts.

August 22, 1882

S. J Thomas and C. P. Sampson, for plaintiff.

W. B French, for Mrs. Mudge.

LOWELL C.J.

Counsel agree that the deed A does not convey a fee; but the defendant Mrs. Mudge contends that it cannot be reformed without violating the statute of frauds. The other defendants have not seen fit to plead or answer. It might be enough to say that the bill does not show that the agreement by which the plaintiff seeks to reform the deed war oral, but, as the case has been fully argued on the supposition that it was so I will take that fact for granted. If it shall be found that the decisions in Massachusetts would authorize the court to reform this deed, there will be no occasion to cite other cases, because those decisions are as little favorable as any, and less so than most others, to the exercise of this equitable power.

1. It is clear that if there is any difference as to the amount of evidence required, or in any other way, between correcting a mistake of law and one of fact, the mistake of a scrivener in Louisiana as to the law of Massachusetts is a mistake of fact.

2. It is the law in Massachusetts, as elsewhere, that the mistake of a scrivener in drawing a deed, whether it be a mistake of law or fact, whereby he fails to carry out the previous agreement of the parties may be corrected in equity. Canedy v. Marcy, 13 Gray, 373; Stockbridge Iron Co. v. Hudson Iron Co. 107 Mass. 290; Rumrill v. Shay, 110 Mass. 170; Wilcox v. Lucas, 121 Mass. 21. In all these cases the evidence was oral, and in all but one the defense of the statute of frauds was set up. The court, in a very elaborate and ingenious opinion by the late lamented Justice Wells, in Glass v. Hulbert, 102 Mass. 24, refused to make a positive addition to the terms of a description in a deed upon merely oral evidence. This decision is ably criticised in 2 Pomeroy, Eq.Jur. § 867, and may need modification, but it is enough here to say that the court in that case escapes the argument of part performance upon grounds which are wholly inapplicable in this case, and this is, of itself, a vital difference between the two.

3. There is a third point which is favorable to the plaintiff. It appears by the deed itself, which, as is remarked by Ames C. J., in Allen v. Brown, 6 R.I. 386, 398, is evidence of the highest order that the parties intended to convey a fee. No one can read the deed and doubt that it undertakes to grant whatever estate was derived by the grantors by inheritance from their sister. By the law of Massachusetts, there words...