Sawtelle v. Tatone

• Citation: 105 N.H. 398,201 A.2d 111
• Parties: Joseph G. SAWTELLE v. Harry A. TATONE et al. Grace K. HICKEY, Indiv. and as Adm'x et al. v. Harry A. TATONE et al.
• Decision Date: 02 June 1964
• Court: Supreme Court of New Hampshire

Page 111

201 A.2d 111

105 N.H. 398

Joseph G. SAWTELLE v. Harry A. TATONE et al.

Grace K. HICKEY, Indiv. and as Adm'x et al. v. Harry A. TATONE et al.

Supreme Court of New Hampshire.

Argued April 8, 1964.

Decided June 2, 1964.

Burns, Bryant & Hinchey and E. Paul Kelly, Dover, for plaintiffs.

Cregg & Cregg, Lawrence, Mass., Perkins, Holland & Donovan, Exeter, and Upton, Sanders & Upton, Richard F. Upton, Concord, for defendants.

DUNCAN, Justice.

These are two equity actions arising out of the sale of certain land in Windham lying between the Range Road, so-called, and Cobbett's Pond, all of which was formerly owned by the decedents Florence A. and Fred G. Sawyer as joint tenants. While they lived the property was known as the Sawyer Farm. It was roughly divided into three parts. The northerly section bordering on the pond was laid out by the Sawyers for development, and commencing in 1950 lots had been sold from time to time to various purchasers including the defendants Tatone, with rights of way to the pond, and access to the public highway by means of a right of way across the land south of the development. A wooded section of about eight acres lay south of the development and northerly of a stone wall bordering the most southerly tract which was open land upon which the Sawyer house was located.

On May 9, 1956 the Sawyers, by three deeds, purported to convey to the Tatones as husband and wife the remaining subdivision lots, and the eight acre tract lying south of the development. By these deeds to the Tatones rights of way to reach the Range Road were similarly granted across the open land to the south retained by the grantors.

Fred G. Sawyer died on May 13, 1956, and the plaintiff Mrs. Grace K. Hickey, a sister of Florence A. Sawyer, was appointed her guardian in July 1956. The following month the plaintiff Hickey was appointed administratrix with will annexed of the estate of Fred G. Sawyer and following Florence A. Sawyer's death on December 24, 1956, Mrs. Hickey was appointed administratrix of Florence's estate in April 1957.

As administratrix of the estate of Florence A. Sawyer, who was left all of Fred's estate by his will, Mrs. Hickey conveyed under a license from the probate court all the right, title and interest of the Florence A. Sawyer estate in the Sawyer farm to the plaintiff Sawtelle by deed dated October 22, 1958. This deed to Sawtelle described the original farm lying between the highway and the pond by its original description and 'excluded * * * the portions conveyed to * * * Tatone' and four other grantees of lots in the development who are not involved in this litigation.

The plaintiff Sawtelle thus became the owner of the open land between the highway and the wooded tract bordering it on the north, which was conveyed to the Tatones in May 1956. Thereafter Sawtelle asserted rights in the right of way in the subdivision bordering the pond, which the Tatones disputed.

On January 28, 1959, Sawtelle brought a bill in equity and petition for declaratory judgment against the Tatones, to determine the rights of the parties. The defendants filed an answer and cross petition seeking to enjoin Sawtelle from interfering with their use of the rights of way. On May 25, 1959 a temporary injunction was entered restraining Sawtelle from using the right of way near the pond, and all parties from conveying any interest in or title to the land formerly known as the Sawyer farm.

By bill in equity dated June 5, 1959 Mrs. Hickey, individually and as administratrix of the Florence A. Sawyer estate, the other heirs of Florence A. Sawyer, and Sawtelle brought a second bill in equity alleging that Mrs. Sawyer had been incompetent when the deeds of May 9, 1956 were given to the Tatones and that the deeds were likewise invalid for fraud and conspiracy between Harry A. Tatone and Fred G. Sawyer.

The bills in equity were tried together and the Court (Sullivan, J.) returned findings and rulings in writing in each case. In the action brought by Sawtelle alone, seeking injunctive relief, the Court ruled that Sawtelle had no right in any capacity to use the right of way across the eight-acre tract conveyed to the Tatones or the rights of way northerly thereof giving access to the pond. Sawtelle's bill of exceptions in this action was allowed by the Presiding Justice.

In the action brought by the heirs and Sawtelle to set aside the deeds of May 9, 1956, the Trial Court found that Mrs. Sawyer was incompetent to execute the deeds, and ruled that her conveyance was ineffective, but that the deeds operated to convey the undivided half interest of Fred G. Sawyer. Accordingly the Court ordered that the defendants Tatone be reimbursed in the sum of $4,000, or half the purchase price, plus the taxes paid by them upon the half interest of Florence A. Sawyer. Bills of exceptions of both the plaintiffs and the defendant in this action were allowed by the Presiding Justice.

In view of the nature of the issues presented, the action which was brought last will be first considered. In this action the defendants Tatone have transferred no exceptions to the finding that Mrs. Sawyer was incompetent to convey her undivided half interest, since there was evidence to support this finding. The issues between the parties relate to the legal consequences of this finding and to the rulings of the Court with reference thereto. The plaintiffs assert that the Court erred in ruling that the deeds in question were nevertheless effective to convey the interest of Fred G. Sawyer. The defendants seek to sustain this ruling of the Trial Court, but contend that there was error in the ruling that the plaintiffs were not barred from obtaining relief by reason of laches and ratification of the conveyances. If the latter contention is sound other issues raised in this action become immaterial. Accordingly this contention will first be considered.

The Court ruled in accordance with the defendants' requests that 'one who has a right to rescind a deed will lose it if, after acquiring knowledge of the facts giving rise to the right, he delays unreasonably in notifying the other party of his intention to rescind.' See Restatement, Contracts, s. 483. It found as requested by defendants that the plaintiffs 'did not notify the [defendants] of their intention to rescind the three deeds of May 9, 1956 until May 25, 1959,'; but denied a requested ruling that 'under all the circumstances this was an unreasonable delay', and ruled that it was not.

Similarly the Court found in accordance with the defendants' request that 'the plaintiff Hickey as guardian and later as administratrix, after knowledge of facts giving rise to a right of rescission of the three deeds of May 9, 1956 expended for estate purposes all or a substantial part of the funds paid for the deeds by the defendants Tatone, and distributed any balance thereof to the heirs.' The Court however declined to rule that 'such action amounts in law to a ratification of the three deeds and will prevail over any intention to rescind on her part which was not communicated to defendants until afterward.' Instead, the Court ruled that 'such action in view of all the evidence does not amount in law to a ratification of the three deeds.'

Additionally, the Court found and ruled that the plaintiffs were not guilty of laches, that the petition was brought seasonably and in good faith, and the plaintiffs 'never knowingly, willingly or voluntarily confirmed or ratified the conveyance' to the Tatones.

In so doing, the Court denied the defendants' request for rulings that the plaintiffs were barred by laches, the delay being unexplained and unreasonable under all the circumstances; that no reasonable excuse for the delay was given; and that the defendants' position was prejudiced by the delay. To the action of the Court here outlined, the defendants duly excepted.

Since the deed of a mentally incompetent person is not void, but is regarded as voidable only (O'Grady v. Deery, 94 N.H. 5, 45 A.2d 295), the deeds executed by Florence A. Sawyer on May 9, 1956 were subject to ratification by her should she recover her competence, or by her guardian (Finch v. Goldstein, 245 N.Y. 300, 157 N.E. 146) or heirs, after the facts were known. The right to sue for the rescission or cancellation of the deed of a mentally incompetent person is commonly considered to vest in the heirs or devisees at the death of the incompetent. Kressler v. Flynn, 323 Mass. 610, 83 N.E.2d 876; Brown v. Brown, 209 Mass. 388, 394, 95 N.E. 796; Wilcox v. Forbes, 173 Mass. 63, 53 N.E. 146; Hovey v. Hobson, 53 Me. 451. See 29 Am.Jur. 'Insane Persons,' ss. 90, 98; 13 Am.Jur.2d 538, Cancellation of Instruments, s. 57; Annots. 2 A.L.R. 431; 33 A.L.R. 51; 2 Williston (3d ed.) s. 253.

The principle applicable to this case was stated in Bechard v. Amey, 82 N.H. 462, 471, 136 A. 370, 375, thus: 'A party 'cannot treat the contract as binding and as rescinded at the same time, and after he has elected to stand by the contract and receive the benefits it confers on him, and has thus ratified and confirmed it, he cannot thus rescind and repudiate it' Willoughby v. Moulton .' As was said in Bullard v. Moor, 158 Mass. 418, 424, 33 N.E. 928: 'Ratification is not estoppel, but it is election,--a different conception. * * * When it operates, it operates, not against the person ratifying, but on the contract, making it as if perfect from the beginning.'

In the case before us, the Trial Court expressly found that the plaintiff Hickey, who as a sister to Mrs. Sawyer was heir to one-third of her estate, while acting 'as guardian and later as administratrix after knowledge of facts giving rise to a right of rescission of the * * * deeds of May 9, 1956, expended for estate purposes all or a substantial part of the funds paid for the deeds by the defendants Tatone, and distributed any balance thereof to the heirs.'

We think that this finding is decisive of ...