MISC 89528

August 21, 1979

Norfolk, ss.

Sullivan, J.


In the winter of 1977 the plaintiffs, Howard W. Lindquist and his wife, Victoria E., ("the Lindquists") decided to sell a house owned by them and rented to third parties in Avon in the County of Norfolk known as 44 Fletcher Street. They intended to include in the sale the so-called Lot 10 on which the house is located and which is shown in an 1896 plan of record in the Norfolk County Registry of Deeds (Plaintiffs' Exhibit No. 1). [Note 1] In 1964 when the Lindquists acquired the land in dispute, the deed to them from Walter P. Rudy et ux dated December 17, 1964 and duly recorded in Book 4221, Page 295 (Defendants' Exhibit No. 1), conveyed the following described premises as one parcel only:

[Being located] on the Northerly side of Fletcher Street, bounded as follows:

SOUTHERLY by said Fletcher Street, one hundred twenty­ six (126) feet, more or less;

WESTERLY by land now or formerly of Fletcher, ninety­ five (95) feet, more or less;

NORTHERLY by land of owners unknown, about one hundred twenty-six (126) feet; and

EASTERLY by land now or formerly of Chamberlin Construction Company, one hundred eight (108) feet, more or less,

or however otherwise said premises may be bounded, measured or described.

The deed to the Rudys from Merrill A. Harlow et ux dated June 18, 1960 and duly recorded in Book 3823, Page 534 (Plaintiffs' Exhibit No. 6) also had used the same description. The earliest deed in the Lindquist chain of title as introduced into evidence did, however, describe the premises by reference to the old plan. This was a deed from Edna Johnson to I. Clinton Harlow et al dated January 19, 1933 and recorded in Book 1982, Page 546 (Plaintiffs' Exhibit No. 7), which contained this description:

two parcels with buildings and improvements thereon situated on Fletcher Street, in said Avon, bounded and described as follows: First Parcel; Beginning at a point in the north line of said Fletcher Street distant five hundred ten (510) feet East from the East line of East Main Street, so called, thence northerly by land of John Fletcher ninety five (95) feet, more or less, to a point of land now or formerly of Hiram C. Keith, thence Easterly by land now or formerly of said Hiram C. Keith sixty (60) feet, more or less, to a point and land of grantor, thence southerly in West line of said grantor's land one hundred one (101) feet to a point in the north line of Fletcher Street, thence westerly in the north line of Fletcher Street sixty (60) feet to point of beginning. Said first parcel is conveyed subject to a mortgage of fourteen hundred ($1400) dollars held by the Brockton Savings Bank. Second Parcel; A parcel of land comprising three separate lots of land in said Avon, and being lots No. 11, 12 and 13 situated on the northerly side of Fletcher Street, Easterly of the premises above described, said lots are shown on a plan of houses owned by John A. Fletcher, surveyed by Hayward & Howard, December 1896 and recorded in Norfolk County Registry of Deeds to which plan reference is made for a more particular description and measurement.

Chalk A shows the outline of the property as described in the 1933 deed and in the later transactions.

There is no dispute about the foregoing documentary evidence nor is there any serious disagreement as to the following facts which on all the evidence I find. The property was listed for sale by the Lindquists with Trufant Real Estate Inc. ("Trufant") as a six room house with one-car detached garage situated on a 5,000 square foot lot with fifty feet of frontage. Trufant then multiple listed the property in the Greater Brockton Multiple Listing Service, Inc. in which publication it was noted by one of the partners of A & E Realty ("A & E"). The latter contacted the defendants, Charles J. Guilbault and Julia M. Guilbault (the "Guilbaults") who agreed to buy the property and executed a purchase and sale agreement (Plaintiffs' Exhibit No. 2), as did the Lindquists. At some time thereafter the agreement apparently was amended to include twenty additional feet of frontage on which the garage and driveway to it were located, and the purchase price was increased by $1,000. There is no disagreement that this was done, but the details are murky.

It is at this stage, however, that the problems which give rise to this case surfaced. As to subsequent events I find the following facts on all the evidence. The parcel of land acquired by the Lindquists in 1964 had a frontage on Fletcher Street of 126 feet of which the Lindquists intended to sell a portion having 70 feet of frontage to the Guilbaults and to retain the remainder with 56 feet of frontage as window dressing and access for their home located on land to the rear of the area in dispute. The division of the parcel constituted a subdivision within the meaning of G.L. c. 41, §81L and required either approval by the Avon Planning Board or the endorsement "approval under the subdivision control law not required." [Note 2] In addition, since the Lindquists proposed to convey less than they had acquired from the Rudys a plan in form for recording was required by G.L. c. 183, § 6A. A representative of A & E and the Guilbaults consulted the Planning Board informally about securing its approval and sensed a negative reaction. The Lindquists were aware that there was alleged to be a Planning Board problem, but Mr. Lindquist refused to accept this. He reasoned that the previous subdivision shown on the 1896 plan permitted the modern division. No one seems to have been cognizant of the fact that a variance granted by the Board of Appeals from the provisions of the Avon Zoning by-law would have resolved the problem since the property was located on a public way, and with the zoning problem cured, the plan doubtless would have been approved by the Planning Board. In any event the proposal was made at an informal conference at the site on the morning of the closing between the Lindquists, the Guilbaults, Mr. Erlichman and Mr. Anderson from A & E that the Lindquists convey to the Guilbaults the entire parcel acquired by them from the Rudys in order that the closing might proceed and that if thereafter appropriate town authority was obtained for the subdivision, the Guilbaults would reconvey to the Lindquists the additional area. The area in question comprised about 5,600 square feet and was not included in the land to be sold pursuant to the purchase and sale agreement. The proposed agreement had no provision for an increase in the consideration by virtue of such inclusion. Mrs. Lindquist in particular rejected this offer and indicated that she would refuse to join in such a conveyance. Subsequently, Mr. Anderson approached the Lindquists' home and threatened to attach the Lindquists' real estate if the transaction was not consummated. The Lindquists called their attorney, who was not available to attend the closing with them, discussed the matter together and drove about in their car before proceeding to Canton and the office of Suburban Coastal Corporation, originally named as a defendant in this proceeding, and the mortgagee of the Guilbaults.

The Lindquists testified that it was not until the morning in question that they learned that the closing had been scheduled for that afternoon; and while counsel and the brokers testified that this was not the usual pattern in Suburban Coastal Corporation's dealings, it is entirely possible that such in fact was the case here. The closing continued intermittently for several hours with the Lindquists reiterating their refusal to go forward if this meant the conveyance of the entire parcel. Ultimately the deed which had been drawn by counsel for Suburban was redrafted to include the reservation of an easement for the benefit of the Lindquists' remaining land to the rear of the locus, and the closing was completed. While the evidence was not clear on who was then to move forward and apply to the necessary town board for the approval, I find that this was to be done by the Lindquists in the name of the Guilbaults, if necessary, and that no steps ever have been taken in this regard. The Guilbaults at least until sometime during the progress of this litigation stood willing to reconvey the parcel if approval were obtained. Rather than carrying out the agreement, however, Mrs. Lindquist simply presented a deed of reconveyance to the Guilbaults who refused to sign it, and the complaint in this case then was filed. The complaint subsequently was amended with leave of Court. Suburban twice moved to have the complaint dismissed as to it; its original motion was denied, but upon its later undertaking to release from its mortgage the area in question should the zoning and subdivision provisions applicable to the Town of Avon be satisfied, the motion was allowed. This allowance has been appealed.

A trial was held on March 22, April 17, and April 18, 1979, at which a stenographer was appointed to record the testimony. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal.

The Lindquists seek to have the conveyance to the Guilbaults set aside on the basis that the deed was procured by fraud, mistake, duress and undue influence or failing this, that the deed be reformed to cover only the parcel included in the purchase and sale agreement. I hold that the deed was not procured by fraud, mistake, duress or undue influence; that the plaintiffs are not entitled to reformation; but that no final judgment will be entered for one hundred twenty (120) days to await the filing by the plaintiffs of the petition for a variance with the Avon Board of Appeals as has heretofore been suggested by this Court. In addition, this decision will define the scope of the easement reserved in the deed.

I am unable to find that the deed from the Lindquists to the Guilbaults is vulnerable to the plaintiffs' attack on the grounds of fraud, mistake and undue influence. Granted that despite the usual rule as to the merger of all prior proposals and stipulations in an executed deed, the Court nonetheless acting under general principles of equity jurisprudence has broad power to reform or rescind written instruments. Beaton v. Land Court, 367 Mass. 385 , 392-93 (1975). In order that this be done, however, the plaintiffs must show that the defendants or their agent "'made a false representation of a material fact with knowledge of its falsity for the purpose of inducing the plaintiff[s] to act thereon, and that the plaintiff[s] relied upon the representation as true and acted upon it to [their] damage.'" Slaney v. Westwood Auto, Inc., 366 Mass. 688 , 703 (1975), quoting Barrett Associates, Inc. v. Aronson, 346 Mass. 150 , 152 (1963).

This rule applies to misrepresentations negligently or intentionally made and the plaintiff's failure to investigate the truth or falsity of the statements will not preclude relief. Bellefeuille v. Medeiros, 335 Mass. 262 , 265 (1957). The law of this jurisdiction was summarized by the court in Yorke v. Taylor, 332 Mass. 368 (1955), as follows:

In this Connnonwealth, where the rule is stricter than that in many jurisdictions, a false though innocent representation of a fact made as of one's own knowledge may be the basis of liability. The same legal conse­ quences attach to this type of representation as to one that is deliberately and consciously false. On principle, lack of diligence on the part of the victim ought not to have any better standing as a defence to rescission in the one case than in the other, and we are not disposed to treat these situations differently.

Id. at 374.

There has been no misstatement upon which the Lindquists relied to their detriment here. The Guilbaults and Erlichman accurately conveyed the Planning Board's position regarding a subdivision and neither said nor did anything to lead the plaintiffs to believe that once the entire tract were conveyed and a petition to the Board filed, that it would be granted routinely and as a matter of right. The Lindquists knew that the Board might not approve the subdivision, yet chose to proceed with the transaction. "The plaintiffs cannot shut their eyes to the facts and contend that they were misled or defrauded •••• Nor can a party, who has the choice between two courses of action, and chooses one with the means of full knowledge before him to which his attention is called, have relief on the ground that he made a miscalculation." Winston v. Pittsfield, 221 Mass. 356 , 361-62 (1915). Thus, the Lindquists are not entitled to rescission or reformation of the deed on the basis of fraud.

Alternatively, the plaintiffs urged this Court to rescind the conveyance on the ground that it was obtained through the exercise of undue influence and duress. The courts in Massachusetts have treated duress as one form of undue influence, and it is generally said that to be actionable, the conduct complained of must destroy free agency and constrain a person to do that which is contrary to his own desire. Corrigan v. O'Brien, 353 Mass. 341 , 350 (1967); Allen v. Plymouth, 313 Mass. 356 , 360-61 (1943); Neill v. Brackett, 234 Mass. 367 , 369-70 (1920).

The Lindquists had the burden of proving the three requisites of undue influence: "(1) a person who can be influenced, (2) the fact of deception practised or improper influence exerted, (3) submission to the overmastering effect of such unlawful conduct."Id. at 370; accord, Emery v. Emery, 222 Mass. 439 , 441 (1916); Whitcomb v. Whitcomb, 205 Mass. 310 , 313-14 (1910). In view of the lapse of time between the morning encounter with the broker and the Lindquists, the opportunity which was afforded to them to obtain counsel, their attendance at the closing, and the extended nature of the latter, I am unable to find that the conveyance was made under fraud or undue influence. If there were a mistake of law, it was not mutual but only that of the Lindquists.

The plaintiffs also argue that the deed may be reformed on the ground of mutual mistake as to a material fact. The applicable rule is

A court of equity is without power to reform a written agreement between parties, except to conform it to the facts of the agreement where those facts by mutual mistake are not made to appear .... It is well settled that to entitle a party to a contract to have it reformed on the ground of a mistake, it must appear that the mistake was mutual. Proof of mistake by one of the parties only is not sufficient. The mistake must be by both and in reference to the same matter. If one of the parties understood the agreement to be substantially as written, the other party will not be entitled to relief on the ground of mistake.

Barrell v. Britton, 252 Mass. 504 , 508 (1925); accord, American Oil Co. v. Cherubini, 351 Mass. 581 , 587 (1967); Franz v. Franz, 308 Mass. 262 , 266-67 (1941); Levin v. Bernstein, 269 Mass. 542 , 543 (1930); Crowley v. Holdsworth, 264 Mass. 303 , 308 (1928). Reformation of a deed will be allowed only "upon full, clear and decisive proof that the instrument failed to express the intent which both parties had in making it." New York, New Haven & Hartford R.R. v. Plimpton, 238 Mass. 337 , 340 (1921). I do not find that either party was mistaken as to the provisions set forth in the deed which in my opinion expresses the compromise reached at the closing. If there were a mistake, it was a mistake of law on the part of the plaintiffs only.

Generally, reformation is not available to cure mistakes of law. Redress has been denied on the theory that every person is presumed to know the law and to conform his conduct accordingly. Therefore, one cannot institute or defend a suit on the isolated ground that he was either ignorant of the law or mistaken as to what it prescribed. Reggio v. Warren, 207 Mass. 525 , 533 (1911). However, this rule has not been invariably applied. As Reggio v. Warren, supra, notes, redress is available where great injustice would be done by applying the general rule.

The correct doctrine both upon principle and authority was stated by the Supreme Court of Michigan in Renard v. Clink, 91 Mich. 1, 3: "While it is a general rule that equity will not relieve against a mistake of law, this rule is not universal. Where parties, with knowledge of the facts, and without any inequitable incidents, have made an agreement or other instrument as they intended it should be, and the writing expresses the transaction as it was understood and designed to be made, equity will not allow a defense, or grant a reformation or recission, although one of the parties may have mistaken or misconceived its legal meaning, scope, or effect .... But where a person is ignorant or mistaken with respect to his own antecedent and existing private legal rights, interests, or estates, and enters into some transaction, the legal scope and operation of which he correctly apprehends and under- stands, for the purpose of affecting such assumed rights, interests, or estates, equity will grant its relief, defensive or affirmative, treating the mistake as analogous to, if not identical with, a mistake of fact.

Id. at 535-36. "The foundation of the rule approved in the Reggio case is that a person must be ignorant or mistaken with respect to his own antecedent and existing private legal rights ...." Allen v. Plymouth, 313 Mass. 356 , 362 (1943). It may well be that Mr. Lindquist continued under a misapprehension as to his right to subdivide based on his belief of the continued vitality of the 1896 plan, but if so, his persistent reliance on that concept was unreasonable in view of the problems which arose prior to and at the closing and of which he was aware. The facts are closer to the Allen rule rather than that of Reggio.

The difficulties here stem from the plaintiffs' original understanding that they held title, for zoning and subdivision purposes, to several lots rather than to only one. The law is clear that contiguous parcels are to be treated as one lot for zoning purposes, despite the earlier recorded deed and plan.

An identical factual situation was presented in Lindsay v. Board of Appeals of Milton, 362 Mass. 126 (1972). From 1903 to 1945, the locus was described as lots 1 and 2 on a filed plan with separate metes and bounds descriptions and separate areas for each lot. Later deeds identified the land with one metes and bounds description and one area. The plaintiffs' application for a permit to construct a house and garage on lot 2 was denied on the ground that it did not constitute a buildable lot under the town's zoning by-law. Affirming this decision, the Supreme Judicial Court reasoned that:

We are of opinion that the deed by which the plaintiffs acquired the Murdock property does not entitle them to have it treated as two lots for zoning purposes. "Zoning by-laws must be construed reasonably." Green v. Board of Appeal of Norwood, 358 Mass. 253 , 258. In defining "1ot" as "a single area of land in one owner­ ship ... [laid out] by metes [and] bounds ... in a recorded deed or on a recorded plan" (emphasis supplied), we believe that the framers of the zoning by-law meant the most recent recorded deed or plan. This interpreta­ tion is confirmed by the second sentence of the definition which provides for the creation of new lots through the recording of deeds or through the filing of a plan with the town building commissioner. Compare Miller v. Board of Appeals of Brookline, 356 Mass. 659 , 661. The plain­ tiffs' recorded deed, and not the recorded 1903 plan, therefore is the proper measure of what they purchased from the Murdocks. Since the deed describes the property conveyed as "[a] certain parcel of land" and sets out a metes and bounds description of a single area, the effect of the deed was to convey one lot as that term is used in the zoning by-law. See Vassalotti v. Board of Appeals of Sudbury, 348 Mass. 658 , 661 (similar result reached even in the absence of an express definition of "lot"). Cf. Clarke v. Board of Appeals of Nahant, 338 Mass. 473 , 476- 477.


Inasmuch as the plaintiffs acquired one lot and not two, it is not open for them, in effect, to revive the old lots 1 and 2 which no longer exist as far as the zoning by-law is concerned. The only sensible construction of the minimum area and frontage requirement is that the exception relative to undersized lots applies to lots which not only were in existence in 1938 but also have retained a separate identity.

Id. at 130-32. Other cases similarly treating contiguous lots as a single, indivisible lot for zoning purposes are Gaudet v. Building Inspector of Dracut, 358 Mass. 807 (1970) (rescript), Vassalotti v. Board of Appeals of Sudbury, 348 Mass. 658 (1965), Vetter v. Zoning Board of Appeal of Attleboro, 330 Mass. 628 (1953), and Giovannucci v. Board of Appeals of Plainville, Mass. App. Ct. (1976) [Note 3].

The conduct of the parties is an acknowledgment that the agreement to reconvey was made and survived the delivery of the deed. The Statute of Frauds was pleaded, but it is not to be made the tool for reaching an unjust result. While specific enforcement of the agreement to reconvey is barred by the statute when, as here, it was pleaded, Andrews v. Charon, 289 Mass. 1 , 3 (1935); Cellucci v. Sun Oil Co., 2 Mass. App. Ct. 722 , 727 (1974), aff'd per curiam, 368 Mass. 811 (1975); G.L. c. 259, §1, subject to certain exceptions which we need not reach, this Court may afford the plaintiffs relief by awarding them the value of the land. However, to recover the value of the land, the party seeking to enforce the obligation must show a readiness and the ability to perform his part of the bargain. Cook v. Doggett, 2 Allen 439 (1861). And if the defendant is willing to perform the oral promise, the plaintiff is not entitled to the value of the land. It is only where the defendant refuses to perform his oral contract, and in effect rescinds it, that the law may imply against him a promise to pay the value of the land, in order to prevent the Statute of Frauds from operating as a shield to fraud. Twomey v. Crowley, 137 Mass. 184 , 184-85 (1884); Riley v. Williams, 123 Mass. 506 , 509-10 (1878). The agreement to reconvey was subject to the condition precedent that appropriate authority be obtained from the Town, and I so find. I also find that the burden of seeking the variance rests on the Lindquists. Rather than the institution of this complaint the appropriate initial step would seem to have been the preparation of a plan showing the division to which the parties had agreed and a petition to the Avon Board of Appeals for a variance based thereon. While counsel was concerned with the existence of valid grounds on which to seek a variance, a proposal by the Lindquists that the easterly part of the Fletcher Street lot be added to the parcel in the rear on which the plaintiffs' house is located and become a part thereof may afford valid grounds for a variance. The back land then would have frontage on a public way, no new building lot would be created, and the problems attendant on the easement would be removed.

Accordingly, no judgment is to be entered in this case for a period of one hundred twenty (120) days to afford the Lindquists an opportunity to follow the procedure set forth above. If it has been concluded favorably within said period, the new plan is to be submitted to the Planning Board. If the Board approves the plan and the defendants decline to convey, then the Lindquists may seek a hearing on the issue of damages only. If the plaintiffs are unable to obtain either the variance or the proper endorsement from the Planning Board, judgment will be entered for the defendants.

The easement reserved by the Lindquists in their deed to the Guilbaults (Plaintiffs' Exhibit No. 5) was of "the right to pass and repass by foot and by vehicle over a portion or strip of the above granted premises on the easterly side of a line running parallel with the easterly side lot line and perpendicular to the front lot line on Fletcher Street. Said line also runs parallel with the easterly side of the garage but two feet from said easterly side of said garage." The width of the easement was not specified in the deed nor was its location other than to make it clear that it was on the land not originally included in the conveyance, but it is apparent from the evidence that it was to encompass the present paved driveway leading to the Lindquists' home together with such additional land adjacent thereto on the easterly side thereof as will afford additional access, when required, for the repair or reconstruction of the driveway. The plaintiffs also may have their mailbox installed on the easterly side of the driveway and adjacent thereto and their trash collected from this location. Until the final disposition of this case the plaintiffs may continue to care for any flowers or shrubs on the parcel, to water them and the grass and to cut the lawn. This would seem to accord with the intent of the parties at the time of delivery of the deed.

In the posture which I have taken of the case I do not reach the question as to whose agent A & E Realty was.

Judgment accordingly.


[Note 1] All recording references are to said Registry of Deeds unless the text otherwise indicates.

[Note 2] The same endorsements would have been required if the Lindquists had adhered to their original intention to sell only Lot 1 in view of the wording of the Avon zoning by-law discussed later in this decision.

[Note 3] Mass. App. Ct. Adv. Sh. (1976) 464.