METROPHANE ZAYKA, JR. and GAYLE H. ZAYKA vs. HELEN GIAMBRO.

In this action brought by Metrophane Zayka, Jr. and Gayle H. Zayka against Helen Giabro, Metrophane's sister, the plaintiffs seek the reformation of a deed to the male plaintiff from his father, Metrophane Zayka ("Senior"). The facts in the case reveal conveyancing mistakes which stem from the parties' failure to deal properly with the title devolution. It is clear from the evidence that Senior intended his son to have a title to the parcel here in dispute, so-called Lot 1 on Old Harvard Road in Bolton in the County of Worcester (the "locus"), and I therefore find for the plaintiffs and order that the deed from Senior to him be reformed. There are alternate theories on which the plaintiffs also would be entitled to prevail and which are discussed briefly at the end of this decision.

A trial was held in the Land Court on December 18, 1989 at which a stenographer was sworn to record and transcribe the testimony. There earlier had been argued a motion for summary judgment brought by the plaintiffs which the Court denied. At the trial Metrophane Zayka, Jr. ("Junior"), Fannie Dettling, an attorney for Metrophane Zayka, the father of Junior and the defendant and Helen Giambro, the defendant sister of Junior testified. Thirteen exhibits were introduced into evidence which are incorporated herein for the purpose of any appeal.

On all the evidence I find and rule as follows:

1. Senior acquired title to a large tract of land located at 2 Old Harvard Road in Bolton in the County of Worcester from Gilbert Wheeler by deed dated February 20, 1937 and recorded with Worcester District Registry of Deeds, Book 2689, Page 21 to which registry the recording information herein refers (Exhibit No. 3). This deed described a parcel containing 27.1 acres and a second parcel of 18.2 acres; it is the former parcel with which this action is concerned. Portions of the parcel, so called Parcel A in the deed, are shown on three plans introduced as Exhibit Nos. 1, 2 and 12.

2. Senior conveyed Parcel A to his wife, Theodora Zayka by deed dated July 11, 1942 and duly recorded. Mrs. Zayka died intestate on or about October 19, 1962 and held title at her death to the premises about which this controversy centers. She was survived by her husband and eleven children including the plaintiff and the defendant. Accordingly Senior held an undivided one-third interest in the premises, and each of the children held title to an undivided two thirty-thirds interest therein.

3. Senior, perhaps forgetting the 1942 conveyance to his wife, conveyed to Junior by deed dated May 29, 1968 and recorded in Book 4854, Page 195 (Exhibit No. 5) a parcel of land containing 85,784 square feet situated at 2 Old Harvard Road in Bolton and shown as Lot 1 on a May 25, 1968 plan (Exhibit No. 2). The father had strong views as to the length of the frontage of the parcel to be deeded out to protect his remaining land, and the proposed earlier version of the plan was revised. This buttresses my conclusion that Senior had forgotten the state of the title or misunderstood the laws of intestacy. The plaintiff and his brothers previously had stayed in a roughhewn structure situated on the locus while they were working in the vicinity. Although the building was equipped for electricity, it had no water nor sewer. At some earlier time the family had used it for a summer camp.

4. Over the years intervening from 1968 the plaintiffs have made significant use of the property. Junior had mortgaged the locus at least three different times in 1968, 1972 and 1975 or 1976, all with Hudson Savings Bank. The improvements which resulted from the financing included pouring a foundation, an addition to the structure which enlarged it to six rooms, remodeling to equip a kitchen, two baths, a living room, bedrooms, a playroom and a laundry room, all prior to 1970. Since that time a carport, shed, landscaping, fireplace with wood stove and chimney, paved driveway, new sewer system and new well have all been added. The cost of these improvements has been appoximately $35-40,000. Proposed new refinancing was rejected by a lender because of a title defect, and it was only through this medium that the plaintiffs learned of the problem.

5. After the conveyance to Junior, Senior also conveyed to William Hodson and Ardelle Hodson an adjoining 40,180 square foot parcel which is shown on Exhibit No. 12. In 1972 after the deed from his children referred to in the next paragraph, Senior executed a confirmatory deed to Mrs. Hodson who thereafter conveyed the property to third parties. The confirmatory deed is dated June 20, 1972 and recorded in Book 5237, Page 428 (E.xhibit No. 13).

7. The administration of the estate of Theodora Zayka led to the execution of deeds from the Zayka children to their father since their mother's death intestate resulted in an undivided two-thirds interest in the eleven siblings. This was accomplished by two deeds to Senior, in one of which, dated. July 20, 1968 and recorded in Book 4879, Page 315, the grantors were Vera E. Vivian, Mary E. Ferguson and her husband, Peter Zayka, Junior, Fannie Zayka, Nicholas Zayka, and Helen Giambro (Exhibit No. 6). The second deed, from Junior as guardian of his minor siblings, ran to Senior as grantee, was dated August 16, 1968 and. recorded in Book 4879, Page 311 (Exhibit No. 7).

The execution of the deed by Junior to his father which reconveyed the interest which Senior had two months before conveyed to Junior as well as conveying the interest which Junior had inherited from his mother in the locus is compelling proof that the parties had made a mutual mistake. It is clear that neither Senior nor Junior understood the conveyancing involved and the consequences of the execution of the instrument from the children to the father by Junior. One way to rectify the error which resulted would be to reform the deed to Senior by excluding therefrom the parcel conveyed earlier in 1968 by Senior to Junior and then to rule, as I hold that it does, that estoppel by deed applied to the instrument. The result then would be that title to the parcel conveyed by his father to Junior would be in the latter (and his wife) as I hold the parties to the deed intended.

8. Subsequently Junior conveyed to his wife, Gayle, the other plaintiff and to himself as tenants by the entirety the parcel in question by deed dated June 6, 1972 and recorded in Book 5227, Page 101 (Exhibit No. 8). This parcel is shown on a plan entitled "Plan of Land Bolton, Mass. owned by Metrophane Zayka", dated May 25, 1968 by Veo & Wheeler, Inc. and recorded in Plan Book 318, Plan 8 (Exhibit No. 2). In 1976 Junior and his wife adopted a child, and Junior asked his father to convey his remaining adjoining land to him so that the land would be available should the child, when an adult, wish to build a home next to his family. Senior accordingly conveyed to Junior and Gayle, the plaintiffs, a certain parcel of land shown as Lot F on a plan entitled "Compiled Plan of Land Bolton, Mass. Owned by Metrophane Zayka" dated July 2, 1976 by Clyde R. Wheeler Inc. duly recorded in Plan Book 427, Plan 98 (Exhibit No. 1) by deed dated July 30, 1976 and recorded in Book 5998, Page 272 (Exhibit No. 9).

9. This 1976 deed from Senior to the plaintiffs bounds by other land of the grantees which is the parcel to which the title now is in dispute and the plan which was recorded with the deed (Exhibit No. 1, the deed being Exhibit No. 9) shows the adjoining land to belong to Metrophane Zayka, Jr. "et.ux." and gives the reference to Plan Book 318, Plan 8. The deed was drafted by the attorney for Senior, the witness Fannie Dettling who prepared most of the deeds to which reference has been made herein. Such recitals also are evidence that the parties understood the adjoining property to belong to the plaintiffs.

10. Senior died intestate in 1983. Ownership of the real estate conveyed to him by his children therefore passed by operation of law to his heirs at law and next of kin. These were his eleven children each of whom inherited one-eleventh of their father's property.

The law would be a poor thing if it could not provide a remedy to alleviate the mutual mistake which the parties made and which is clearly apparent from the instruments before the Court. Their interest must be effectuated. There are three theories on which the plaintiffs might prevail:

a) The deed from the heirs of Theodora to Senior which included the locus and in which Junior joined even though his father had conveyed it to him only a short time previously clearly is subject to reformation to exclude Lot 1 from the granted premises; thereafter estoppel by deed which I hold applies to statutory quitclaim deeds would confirm title already conveyed to Junior;

b) Possession taken by the plaintiffs in 1968 and occupied by them adversely to all the world since that time openly and notoriously would establish title by adverse possession; and

c) The deed from Senior to Junior and his wife excluded the portion of Parcel A which the parties believed had already been conveyed to Junior and his wife as appears from the reference therein to the adjoining land as belonging to the plaintiffs. This deed might be reformed to include the locus.

It is on the last theory that the plaintiffs principally have framed their case, and they have borne their burden of establishing their right to reformation. [Note 1] It is a familiar branch of equity jurisdiction to reform instruments that fail to express the agreement and intention of the parties thereto. Reder v. Kuss, 351 Mass. 15 , 17 (1966). The defendant argues that this case falls within the rule that if the parties made an agreement which they might not have made except for the mistake, the court cannot make a new agreement for them, and the instrument cannot be reformed into one the court thinks they would have made if they had known the true state of the title. See Williston on Contracts, §1549. That rule can, however, be distinguished. The parties thought the adjoining land already was in the grantees, and it was so intended. As in Green v. Cappy Homes Co.. Inc., 354 Mass. 35 (1968) the deed can be reformed to accomplish this intention. In a certain posture of the case it may seem a gargantuan leap to include the parcel shown on Exhibit No. 2 within the premises conveyed by Exhibit No. 9. The result easily can be accomplished, however, by reforming the metes and bounds, the resultant change is no more radical than in Green.

The deed from the children to their father also can be reformed by excluding Lot 1; since his father had so recently conveyed the parcel to him, it obviously was a mutual mistake to have Junior reconvey it as part of a larger conveyance. Title then would be in Senior except for Junior's own two thirty-thirds and the eleven thirty-thirds his father had conveyed to Junior. Once the children signed off, the earlier deed from father to son would feed the statutory covenants and title would pass to Junior by operation of law. Senior and those claiming under him thus are estopped from claiming title.

An equally strong case can be shown based on adverse possession., but the plaintiffs have not pleaded or argued this ground.

It is difficult to understand why the defendnt alone of Junior's ten siblings refused to grant a confirmatory deed to her brother. Her position seems to be rooted in a belief that there had not been full disclosure or unhappiness that the men in the family, not the women, received the real estate. In any event title to the locus belongs in the plaintiffs.

The plaintiffs filed requests for findings of fact and rulings of law on which I have not acted in the light of my own findings and rulings. Judgment accordingly.