Fox v. Smith , 73 Conn. 144 ( 1900 )

Upon the trial in the Court of Common Pleas both parties claimed that there was a mistake in giving to the defendant a deed of the twenty-six acre tract. The defendant contended that by the written agreement it was intended by both parties that she should receive a deed of the twenty-six acre tract adjoining her own premises and not of the eight acre tract, and that the mistake of both parties was in supposing that the plaintiff owned the twenty-six acre tract. The plaintiff, on the other hand, claimed that the agreement contemplated the conveyance of the eight acre and not of the twenty-six acre tract, and that the only mistake was in changing the correct descriptions of the boundaries of the eight acre tract as originally given in the deed and mortgage executed by both parties, and so making them describe the twenty-six acre tract which neither party intended should be conveyed.

The writing of June 1st, 1898, signed by the plaintiff upon receipt of the $100 and accepted by the defendant, stated that the plaintiff's land to be conveyed was that described in the deed recorded in Vol. 1, p. 132, of the land records of Beacon Falls, which was the deed of Sackett to the plaintiff of the eight acre tract, the only land owned by the plaintiff in that town. Both the warranty deed from plaintiff to defendant and the mortgage back from the defendant state the quantity of the land as "being eight acres more or less," and, as originally drawn, these deeds correctly described the boundaries of the eight acre tract as they were given in the plaintiff's deed from Sackett. These facts clearly justify the conclusion of the trial court that it was, as claimed by the plaintiff, his intention to sell and the defendant's to purchase the eight acre tract conveyed by Lucius Sackett to the plaintiff in 1878, and not the twenty-six acre tract, and that the mistake of the parties was in believing that they were correctly describing the eight acre tract when they changed the description of the boundaries in the deed and mortgage as originally drawn so that, when changed, they described the boundaries of the twenty-six acre tract.

But the defendant now claims that since, by reason of a mutual mistake the boundaries given in the deed to her are those of the twenty-six acre tract which was not intended to be conveyed and which the plaintiff did not own, she has received title to neither the twenty-six acre not the eight acre tract, the plaintiff has wholly failed to perform his contract to convey the latter, and that therefore he cannot recover upon the note, since it is without consideration.

We do not think that the general description of the land in the plaintiff's deed to the defendant, by the words which follow the description by boundaries, namely, "being eight acres more or less, and being the same property quitclaimed to me by the said Lydia A. Smith, by her deed dated January 9th, 1878, and recorded in Vol. 1, p. 94, of Beacon Falls land records" — renders it a good conveyance of the eight acre tract. The description by metes and bounds is free from ambiguity and must control, notwithstanding the inconsistent general statement which follows by reference to another deed; and had the question in the trial court been simply that of the legal effect of the language in the description of the deed to the defendant, instead of the material question of mutual mistake raised by the pleadings, extraneous evidence of the intention of the plaintiff to convey by that language the eight acre tract would not have been admissible.Benedict v. Gaylord, 11 Conn. 332; Elliott v.Weed, 44 id. 19, 23; Sherwood v. Whiting, 54 id. 330, 332;Clark v. Beloff, 71 id. 237.

The fact that the deed from the plaintiff does not convey a title to either the eight acre or the twenty-six acre tract is, however, no defense to this action. The finding leaves it doubtful whether the plaintiff ever delivered to the defendant the deed as he first prepared it. However that may be, the defendant, by requiring the boundaries to be changed, impliedly refused to accept the deed which the plaintiff first executed and was ready to deliver and which would have given her a good title to the eight acre tract. It was unnecessary for him to tender to her a deed which she had refused to accept, at least until she had revoked that refusal. If he did not actually deliver the deed as first prepared he was prevented from doing so, and from thus properly performing his contract, by her act. He delivered to her, as a conveyance of the eight acre tract, a deed containing the language required by her as a description of that tract. She has received what she asked for. So long as she claimed that the boundaries as changed at her request properly described the eight acre tract, she could not justly complain of the failure of the plaintiff to give her a deed containing a correct description of the eight acre tract. Nor can it be said that the plaintiff is at fault in not having tendered a deed containing a correct description of the eight acre tract after he learned that the boundaries in the defendant's deed were those of the twenty-six acre tract, inasmuch as the defendant, since that time, has claimed that she intended to purchase the twenty-six acre tract, and that the deed she received properly described the land which she intended to buy.

As the defendant is entitled under the agreement to receive, and the plaintiff is willing to execute to her, a valid conveyance of the eight acre tract, and as the failure of the defendant to receive such a deed is attributable to her fault, there is a sufficient consideration for the note.

No claim having been made by the defendant for a breach of any of the covenants of the plaintiff's deed to her of the twenty-six acre tract, and the defendant in her cross-complaint having asked that that deed be set aside and declared void, the plaintiff was not called upon in this action to ask that the deed be canceled in case it should be held not to convey the eight acre tract.

There is no error.

In this opinion the other judges concurred.