ARTHUR LEONARD WARD vs. ARTHUR LEONARD WARD, JR.

TRAINOR, J. In this appeal we are asked to determine whether a conveyance of property by quitclaim deed, duly recorded, with the reservation of a life estate, can be rescinded based solely on a unilateral mistake by the grantor.

The plaintiff, Arthur Leonard Ward (Arthur, Sr.), commenced an action in the Superior Court against his son, the defendant, Arthur Leonard Ward, Jr. (Arthur, Jr.), seeking rescission (count I) and reformation (count II) of the deed to 24-26 Cross Street, Belmont (property) [Note 1] due to mistake; a declaratory judgment regarding ownership of the property (count IV); damages for breach of fiduciary duty (count V); relief due to undue influence (count VI); the imposition of a constructive trust (count VII); and an accounting (count VIII). [Note 2] At the request of the parties,

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the issues of undue influence, breach of fiduciary duty, and mistake were tried to a jury. The judge reserved the requests for a declaratory judgment, an accounting, and the imposition of a constructive trust, and the determination of equitable remedies to be imposed in the event that the jury found undue influence, breach of fiduciary duty, or mistake.

The jury found, inter alia, that (1) Arthur, Jr., did not unduly influence Arthur, Sr.; (2) a fiduciary duty existed between Arthur, Jr., and Arthur, Sr.; (3) Arthur, Jr., did not breach his fiduciary duty; and (4) Arthur, Sr., signed the deed to the property under the mistaken belief that he could change it. The judge adopted each of the jury's findings. Based upon the jury's finding of mistake, the judge rescinded the deed to the property (count I), dismissed the requests for reformation (counts II & III), and declared Arthur, Sr., the owner of the property (count IV).

Arthur, Jr., appeals from the part of the judgment that rescinds the deed, declares the deed null and void, and further declares that the property is held in fee simple absolute by Arthur, Sr.

Facts. In February, 2000, Arthur, Sr., retained an attorney, Dale Tamburro, for assistance with his estate planning. Tamburro testified at trial that he explained to Arthur, Sr., the "pros and cons" of conveying ownership of the property while retaining a life estate, including the fact that such a conveyance would be irrevocable. On February 18, 2000, in Tamburro's office, Arthur, Sr., executed a will, power of attorney, health care proxy, and living will. Although the power of attorney named Arthur, Jr., the "attorney in fact," he was not present on the day of its execution and never signed it.

Three days later, Arthur, Sr., executed a quitclaim deed conveying the property to Arthur, Jr., while retaining a life estate for himself. The deed was recorded with the Middlesex South registry of deeds. Arthur, Jr., did not become aware of this conveyance until sixteen months after the deed was recorded. Tamburro testified at trial that Arthur, Sr., executed the deed as his free act and deed, and specifically remembered that Arthur, Sr., wanted Arthur, Jr., "to have the house." Since acquiring the property in December, 1983, Arthur, Sr., had lived in the upstairs unit while Arthur, Jr., lived in the downstairs unit of the property.

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In August, 2002, after Arthur, Sr.'s two daughters learned of the conveyance of the property and the will, Arthur, Sr., asked Arthur, Jr., to deed the property back to him. When Arthur, Jr., refused, Arthur, Sr., initiated eviction proceedings resulting in Arthur, Jr., vacating the property pursuant to an agreement for judgment.

The daughters met with a second attorney, who later represented Arthur, Sr., at trial. Claiming that he learned of his mistake about the legal consequences of the conveyance after talking with "someone," whom he could not remember, Arthur, Sr., executed a new estate plan with the help of the second attorney. The new estate plan included a new will, health care proxy, living will, and power of attorney. The new will bequeaths Arthur, Sr.'s entire estate to his two daughters, specifically omitting Arthur, Jr.

Discussion. The judge instructed the jury on the doctrine of unilateral mistake, and asked them to determine the following factual questions: (1) did Arthur, Sr., voluntarily sign the deed to the property or was it the result of undue influence; (2) was a mistake made in the deed, either by Arthur, Sr., or the draftsman, and was that mistake clearly inconsistent with Arthur, Sr.'s intent; and (3) was Arthur, Sr.'s actual intent that he be able to change the deed "if he so desired". The jury returned a verdict finding that Arthur, Sr., signed the deed voluntarily and not as a result of any undue influence. The jury also found that Arthur, Sr., "sign[ed] the deed to [the property] on February 21, 2000, under a mistake as to whether he could change the deed." Pursuant to the jury's verdict, the judge determined that the mistake would best be remedied by rescinding the deed and declaring Arthur, Sr., the owner of the property, in fee simple absolute. This was error.

The judge relied on Simches v. Simches, 423 Mass. 683 (1996), which stated that "a written instrument, including a trust, will be reformed on the grounds of mistake upon 'full, clear, and decisive proof' of the mistake." Id. at 687, quoting from Berman v. Sandler, 379 Mass. 506, 509 (1980). Simches, supra, and the other cases relied upon by the judge, however, concern the reformation of a trust stemming from the unilateral mistake of the settlor.

Rather than a trust, the document at issue here is a deed. The

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conditions necessary to reform a deed are quite different from those necessary to reform a trust. "The doctrine of reformation for mistake with regard to trusts differs from that with respect to instruments such as contracts . . . in one important respect. In contract law, reformation will not be granted unless the parties' mistake is mutual." Berman, 379 Mass. at 509- 510. [Note 3] Mutuality of mistake [Note 4] is generally not required to reform a trust, because the settlor usually receives no consideration for the creation of the trust. Unlike trusts, contracts and deeds may only be rescinded or reformed because of mistake if the mistake is mutual to the parties. See Crowley v. Holdsworth, 264 Mass. 303, 307-308 (1928). [Note 5] See also Cummings's Case, 52 Mass. App. Ct. 444, 447 n.8 (2001) ("Rescission is an equitable

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remedy granted when there has been a mutual mistake of fact or fraud between the parties").

Additionally, relief will not ordinarily be granted, in the absence of fraud or undue influence, merely on the ground of mistake of law. A "[m]isconception of the legal effect of the language used in the instrument is not a 'mistake of law' against which our courts afford a remedy. The parties are bound by the legal effect of what has really been agreed on, and cannot have the declaration set aside on the ground that they did not fully understand the legal effect of the language used, and that certain legal consequences which were not anticipated by the settlors flowed from its execution." Coolidge v. Loring, 235 Mass. 220, 224 (1920). See Taylor v. Buttrick, 165 Mass. 547, 549-551 (1896) (court declined to rescind a deed, as part of a trust, based on a unilateral mistake of law or lack of understanding the full effect of the deed). [Note 6] Were the law to hold otherwise, the reformation or rescission of a contract based solely upon proof of one party's mistake as to its legal effect would impose upon the other party a contract for which he had not bargained. See Page v. Higgins, 150 Mass. at 30 ("if a deed should be reformed and corrected upon proof of the mistake of one of the parties, the great injustice might be done of imposing upon the other the consequences of a contract to which he had never assented, and therefore wholly against his will"). [Note 7] See Sztuba v. Sztuba, 3 Mass. App. Ct. 781, 781 (1975) (reformation of deed was not

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warranted where mother's failure to include name of plaintiff son as a cograntee was a unilateral mistake).

It makes no difference that Arthur, Jr., was unaware of the existence of the deed for sixteen months after its recording. The deed acknowledged that Arthur, Sr., conveyed the property "for consideration paid and in full consideration of less than one hundred ($100.00) dollars." Lack of consideration, failure of consideration, or insufficient consideration is not fatal, in the absence of fraud, to a deed's effective transfer of title. See Mather v. Corliss, 103 Mass. 568, 571 (1870); Comstock v. Son, 154 Mass. 389-390 (1891) ("A deed is not void as between the parties if without consideration"). Sufficient consideration may also, in the absence of fraud, consist of nothing more than "love and affection"; although it is not a "valuable" consideration it is nevertheless good consideration between the parties. See Parsons v. Parsons, 230 Mass. 544, 551 (1918) (consideration paid by a son for his mother's conveyance need not be adequate in monetary value because other consideration, such as natural love and affection, constitute sufficient consideration). See also G. L. c. 183, § 6 (failure to comply with requirement of reciting in the deed the amount of full consideration, or the nature of other consideration, will not affect its validity). [Note 8]

Finally, a written agreement for the sale of real estate, reciting

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that it is under seal, as the deed here does, is a "sealed instrument" and no consideration is required to support the agreement and to transfer title. See Tupper v. Hancock, 319 Mass. 105, 107 (1946); Morad v. Silva, 331 Mass. 94, 98 (1954); G. L. c. 4, § 9A.

Furthermore, the jury determined that Arthur, Jr., neither exercised any undue influence in the procurement of the deed nor breached any fiduciary duty owed Arthur, Sr. The sole issue for this court to consider is the consequence of Arthur, Sr.'s mistake as to the legal consequence of the deed, which conveyed title to Arthur, Jr., and reserved a life estate to himself. The mistake here, if any, was entirely one of law. Arthur, Sr.'s attorney drafted the deed, and there was no showing that the attorney made a scrivener's error. The most that can be concluded is that Arthur, Sr., made an erroneous conclusion as to the legal consequence of precisely what he directed his attorney to draft.

We conclude, therefore, that Arthur, Sr., cannot rescind this deed based upon his unilateral mistaken belief as to its legal effect and consequence. [Note 9]

The judgment of the Superior Court is reversed with respect to count I (rescission) and count IV (declaratory judgment). In all other respects, the judgment is affirmed.

So ordered.