#40, Drano Series
A Complaint for Rescission or Reformation of a Deed *
from JOHN SMITH's parents and John SMITH
to JOHN SMITH and POCAHONTAS
based on mistake, deceit, or fraud by not intending to keep
solemn marital vows to stay married to JOHN until death do them part
~NOTE~
After deeding the property, JOHN SMITH's parents continued to live with JOHN and POCAHONTAS in the home, and when
JOHN and POCAHONTAS moved elsewhere, the parents
continued to be domiciled in and bear 95+ percent of the costs of the mortage-free but not tax-free residence. JOHN and POCAHONTAS and the kids used the property as a weekend, holiday, and summertime retreat from the "big" city.
* Thanks goes to Ken Howes for the brilliant suggestion below:
All parents who convey real property to a child and his or
her spouse ought to include IN THE DEED a provision stating that in the event the parties divorce, the property will revert to the grantors (the parents)
and shall not be property of the marital estate.
This might prevent the kind of heartbreak parents have when they give their grown children real estate and see their child
lose the gift when the child divorces.
COMMONWEALTH OF MASSACHUSETTS COUNTY, SS. SUPERIOR COURT
NO.
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King Harry Smith and
John Smith,
Plaintiffs
v.Pocahontas Smith
Defendant
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-VERIFIED COMPLAINT
JURY CLAIM FOR FACTUAL DISPUTES AS TO ALL COUNTSINTRODUCTION
King Harry Smith ["KING HARRY"] and John Smith ["JOHN"] of Massachusetts bring this action for rescission of the deed to JOHN and Pocahontas Smith ["POCAHONTAS"] to certain real property in TOWN, Massachusetts, or reformation of the deed to reflect that JOHN should be the sole owner of the TOWN property.
KING HARRY and JOHN assert the following claims against Defendant POCAHONTAS in the above-entitled action:
(1) rescission of the deed based on mistake of fact,PARTIES
(2) rescission based on deceit,
(3) rescission based on fraud,
(4) reformation of the deed.1. Plaintiff KING HARRY SMITH is a natural person residing at 00 OOOOOOO Road, TOWN, County, Massachusetts, United States of America, at all relevant times of this action, and is the father-in-law of Defendant POCAHONTAS SMITH, Esq.
2. Plaintiff JOHN SMITH is a natural person residing at 00 OOOOOOOOO Street, Unit 0, CITY, County, Massachusetts, United States of America; was a resident of Massachusetts during all relevant times of this action, and is the husband of Defendant POCAHONTAS SMITH, Esq.
3. Defendant POCAHONTAS SMITH. who is a natural person, a Harvard-Law-School-educated attorney, and member of the Massachusetts and ZZZZ Bars, was residing at 00 OOOOOOO Road, TOWN, County, Massachusetts, and XXXXXX Street, CITY2, County, Massachusetts, United States of America, at all times relevant to this Complaint, resides currently at 00 XXXXXXXXXXX Drive, TOWN, County, ZZZZ 00000, United States of America. POCAHONTAS is the daughter-in-law of KING HARRY and wife of JOHN.
FACTS
4. During 1987, JOHN met POCAHONTAS while she was a student at Mount Holyoke College in South Hadley.
5. During November 1987, POCAHONTAS moved in with JOHN and his parents.1
1 JOHN's mother, QUEEN ANNE, has since died.6. On 15 June 1991, JOHN and POCAHONTAS were married in YYYYY, ZZZZ.7. JOHN and POCAHONTAS exchanged marital vows, or a mutual promise.
8. The marital vows were, for all intents and purposes, to have and to hold from that day forward, for better or worse, for richer or poorer, in sickness and in health, to love and cherish, till death do them part.
9. Plaintiffs and the now-deceased mother and wife, QUEEN ANNE, reasonably believed that POCAHONTAS intended to honor the solemn marital vows and stay married to JOHN until death parted them.
10. On 28 September 1991, KING HARRY, QUEEN ANNE, and JOHN "for consideration paid, and for no monetary consideration," deeded to JOHN and POCAHONTAS, husband and wife, as tenants by the entirety, the real property located at 00 OOOOOOO Road, TOWN, County, Massachusetts.
11. The nonmonetary consideration by POCAHONTAS was the vow she took during the marriage ceremony.
12. On 3 October 1991, the deed was recorded in the COUNTY Registry of Deeds in Book 0000, Pages 0000-0000.
13. POCAHONTAS did not intend to honor her marital vows.
14. On 13 December 1999, POCAHONTAS filed a Complaint for Divorce.
COUNT ONE: RESCISSION BASED ON MISTAKE OF FACT
15. Plaintiffs repeat and reallege and incorporate by reference the allegations in paragraphs 1 through 14 above with the same force and effect as if herein set forth.
16. Plaintiff JOHN and POCAHONTAS entered into an oral agreement, to wit, made marital vows to each other.
17. Subsequent to the wedding and relying on POCAHONTAS's sworn solemn vows, Plaintiffs KING HARRY and JOHN and the deceased QUEEN ANNE executed a deed granting the 00 OOOOOOO Road property to JOHN and POCAHONTAS.
18. The subsequent agreement, to wit, the deed, did not have sufficient consideration.2
2 See DeBlois v. Boylston & Tremont Corporation, 281 Mass. 498, 509 (1933) (where one party performs only part of what she promised in the original contract, her consideration "will not support a promise by the other party to perform what he had previously agreed and something more. Vincent v. Torrey, 11 Mass.App.Ct. 463, 467 (1981) (where total failure of consideration for the deed, rescission of the deed was appropriate relief to property owner) and cases gathered there.19. Because the deed grantors (KING HARRY and JOHN) reasonably believed that POCAHONTAS intended to honor the solemn marital vows, but their belief was at variance with reality, rescission of the deed is appropriate.33 Sherman v. Walker, 66 Mich. 568, 33 N.W. 919 (1887) (rescission permitted where there was reasonable belief that cow was "probably barren and would not breed" and this mutual belief was not in accord with the existing facts).WHEREFORE, Plaintiffs demand relief in equity and/or at law, to wit, rescission or reformation and judgment, including interest, against Defendant POCAHONTAS in an amount deemed by this Court to be just and fair and in any other way in which the Court deems appropriate.COUNT TWO: RESCISSION BASED ON DECEIT
20. Plaintiffs repeat and reallege and incorporate by reference the allegations in paragraphs 1 through 19 above with the same force and effect as if herein set forth.
21. POCAHONTAS deliberately misrepresented facts within her knowledge and upon which the grantors relied.
22. POCAHONTAS, therefore, committed actionable deceit.4
4 Stewart v. Jopyce, 201 Mass. 301, 310 (1909).WHEREFORE, Plaintiffs demand relief in equity and/or at law, to wit, rescission or reformation and judgment, including interest, against Defendant POCAHONTAS in an amount deemed by this Court to be just and fair and in any other way in which the Court deems appropriate.COUNT THREE: RESCISSION BASED ON FRAUD
23. Plaintiffs repeat and reallege and incorporate by reference the allegations in paragraphs 1 through 22 above with the same force and effect as if herein set forth.
24. The deed was complete in its formal elements.
25. POCAHONTAS expressly or impliedly represented that she would honor the solemn marital vows and stay married to JOHN until death parted them, but POCAHONTAS had no intention of honoring them.
26. The grantors were induced by POCAHONTAS's false and material representations as to her intentions regarding the marriage and relied on those misrepresentations to grant her an interest in the property by deed.5,6
5 Lefevre v. Chamberlain, 228 Mass. 294, 297 (1917) (plaintiffs, induced to exchange property by defendant's false and material representations as to property taken in exchange, on discovery of fraud, after deed had passed, might resort to equity for rescission and appropriate relief), citing Ginn v. Almy, 212 Mass. 486, 493 (1912) (equitable relief with alternative relief in dmajs available); Winston v. Pittsfield, 221 Mass. 356, 358 (1915) (where bilateral contract has been fully performed by plaintiff, if it was entered into through the fraudulent representations of the defendant, or under mutual and material errors of fact, upon discovery of fraud or mistake, equity has jurisdiction to grant relief). See also Marshall V. Marshall, 10 Mass.App.Ct. 893, 894 (1980).27. Her motive was to have the property conveyed to her, only one of the benefits to be gained from the marriage.6 Where misrepresentations are sufficient to justify a finding of fraud or undue influence over a person so as to influence a person to conveyed his property, the court can set aside that conveyance. Gilman v. Gilman, No. 94-01982-E, 1995 WL 1146216 at *3, (Mass.Super. 1995) (Hamlin, J.), citing Corrigan v. O'Brian, 353 Mass. 341, 350 (1967). "If statements made were knowingly false, there is plainly a basis for rescission." Gilman, at *3, citing Bellefeuille v. Medierios, 335 Mass. 262, 265 (1957); Lang v. Giraudo, 311 Mass. 132, 138 (1942). "A court acting under general principles of equity jurisprudence has broad power to reform, rescind, or cancel written instruments including [deeds] on grounds such as fraud, mistake, accident or illegality." Beaton v. Land Court, 367 Mass. 385, 392 (1975); Brodie [v. Evirs, 313 Mass. 741], 744 (1943).
28. POCAHONTAS, therefore, committed fraud, and the deed must be rescinded.7
7 [W]hen one of the formal constituents of legal transactions is wanting, there is noWHEREFORE, Plaintiffs demand relief in equity and/or at law, to wit, rescission or reformation and judgment, including interest, against Defendant POCAHONTAS in an amount deemed by this Court to be just and fair and in any other way in which the Court deems appropriate.
question of rescission -- the transaction is void ab initio -- and the fraud does not impart to it, against the will of the defrauded party, a validity that it would not have if the want was due to innocent mistakes. The sale being void, and not merely voidable, or, in simpler words, there having been no sale, the delivery to [the vendee] gave him no power to convey a good title to a bona fide purchaser.Rodliff v. Dallinger, 141 Mass. 1, 6 (1886).
COUNT FOUR: REFORMATION
29. Plaintiffs repeat and reallege and incorporate by reference the allegations in paragraphs 1 through 28 above with the same force and effect as if herein set forth.
30. POCAHONTAS defrauded the two Plaintiff-grantors and the deceased-grantor, QUEEN ANNE.
31 JOHN did not defraud his grantor-parents and has an enforceable interest in the property.8
8 Wareham Savings Bank v. Partridge. 317 Mass. 83, 86 (1944).32. JOHN is entitled to have the deed reformed so as to leave only himself as the grantee on the deed.99 "As a general rule, reformation of an instrument may be warranted not only by fraud or by mutual mistake, but also by mistake of one party which is known to the other party." Torrao v. Cox, 26 Mass.App.Ct. 247, 250 (1988) (cites omitted).WHEREFORE, Plaintiffs demand relief in equity and/or at law, to wit, rescission or reformation and judgment, including interest, against Defendant POCAHONTAS in an amount deemed by this Court to be just and fair and in any other way in which the Court deems appropriate.Respectfully submitted,
PLAINTIFFS,
By their attorney,Barbara C. Johnson
6 June 2001 Barbara C. Johnson, Esq.
6 Appletree Lane
Andover, MA 01810-4102
978-474-0833
PLAINTIFF'S KING HARRY SMITH’S VERIFICATION
The undersigned, being duly sworn, deposes and says that I am the Plaintiff herein, and have read the foregoing pleading filed on my behalf, and the facts stated therein are true.
7 June 2001 _____________________________
KING HARRY SMITH.Subscribed and sworn to before me, this ___th day of June 2001.
______________________________
Notary PublicPLAINTIFF'S JOHN SMITH'S VERIFICATION
The undersigned, being duly sworn, deposes and says that I am the Plaintiff herein, and have read the foregoing pleading filed on my behalf, and the facts stated therein are true.
7 June 2001 _____________________________
JOHN SMITH.Subscribed and sworn to before me, this ___th day of June 2001.
______________________________
Notary Public