#50, Drano Series
Opposition to Motion to Dismiss Complaint for Rescission
Sought on Grounds of
Not Honoring
Solemn Marriage Vows*
The court did not act on this motion. Instead it stayed the case until the divorce is resolved.
COMMONWEALTH OF MASSACHUSETTS County, SS. SUPERIOR COURT
DOCKET NO. 01-120
___________________________John Smith, Sr. and
John Smith, Jr.,
Plaintiffs
v.Pocahontas Smith
Defendant
___________________________
PLAINTIFFS' OPPOSITION and MEMORANDUM IN SUPPORT OF
OPPOSITION TO DEFENDANT'S MOTION TO DISMISSJohn Smith, Jr.'s affidavit accompanies this memorandum.
In support of his opposition to Pocahontas Smith's ["Pocahontas"] Motion to Dismiss, Plaintiffs John Smith, Sr. ["Smith"], and John Smith, Jr. ["John, Jr."], submit this memorandum.
As grounds for this opposition, Plaintiffs state the following:
1. Where consideration was given and stated in the deed, the real property was not a gift. FACTS
a. Where there is no evidence of donative intent on plaintiffs' part, combined with no evidence of the delivery of the property to the defendant, Pocahontas, in a manner that surrenders dominion and control, Pocahontas cannot sustain the transfer as a gift. 2. Where there was a failure of consideration by the defendant, Pocahontas, rescission is appropriate.3. Parol evidence is admissible to give meaning to language and to show the sense in which particular words were probably used.
a. Where marriage vows would be naturally omitted from a deed, the merger doctrine does not apply. 4. Where Pocahontas admits that because there is a high rate of divorce, she believed when she married that she would not stay married, she committed actionable deceit and/or fraud when she spoke the marital vows.5. Where Pocahontas expressly or impliedly represented that she would honor the solemn marital vows and stay married to John, Jr. until death parted them, but Pocahontas had no intention of honoring them, she committed actionable fraud.
6. Where Pocahontas defrauded the two Plaintiff-grantors and the deceased-grantor, Sweet Caroline Smith, and where John, Jr. did not defraud his grantor-parents and has an enforceable interest in the property, John, Jr. is entitled to have the deed reformed so as to leave only himself as the grantee on the deed.
Plaintiffs incorporate herein by reference the facts as stated in the Verified Amended Complaint.
Additional facts are below. A few may be repeated because of their particular relevance to this opposition.
1. Pocahontas moved into the locus with the three Smiths around November 1987, while she was a sophomore at Mt. Holyoke.
2. The senior Smiths continued to live in the Rural Road property after delivering the deed.
3. After Caroline Smith's demise, John Smith, Sr., continued to, and still does, live in that property.
4. John, Jr. and Pocahontas lived there until 1990, when they moved to Cambridge, where Pocahontas attended Harvard Law School.
5. John, Jr. and Pocahontas married at the end of her first year of law school.
6. After graduation, she became employed, consecutively, at two prestigious Boston law firms: Lawfirm #1 and Lawfirm #2.
7. John, Jr. and Pocahontas returned to Pelickingham at least 50 weekends throughout the year until about 1997.
8. During and after 1997, John, Jr. and the children (who were born on 3 December 1994) continued to visit Pelickingham almost every weekend.
9. During and after 1997, Pocahontas returned to Pelickingham less frequently: for instance, in 1997, she perhaps went 40 weekends; in 1998, perhaps 20 weekends; and by 1999, no weekends.
10. Pocahontas paid with her own funds the real estate taxes for one and maybe two years out of the ten years since her name was put on the deed.
11. The real estate taxes on the locus have been paid by the grantor Smith for approximately eight out of the ten years,
12. Neither the grantors (the senior Smiths or John, Jr.) nor the grantees (John, Jr. or Pocahontas) paid gift taxes, because the granting of the deed was not a gift.
13. The senior Smith has also paid all the utility bills over the ten years since granting the deed, and John, Jr. -- who was both grantor and grantee -- has at all times put in "sweat equity" by maintaining and improving the property.
DISPUTED FACTS
1. In her section entitled Factual Background, Pocahontas misidentified Sweet Caroline Smith (wife of Smith and mother of John, Jr.) as being a "donor" of the subject property at 00 Rural Road, Pelickingham, Massachusetts.
2. The deed was given "for consideration paid, and for no monetary consideration" [Verified Amended Complaint, par. 10, and Exh. A, hereto attached].
STANDARD OF REVIEW
"In ruling on a motion to dismiss, `the allegations of the complaint [and annexed exhibits], as well as such inferences as may be drawn therefrom in the plaintiff's favor, are to be taken as true.'" Whitinsville Plaza, Inc. v. Kosteas, 378 Mass. 85, 87 (1979), quoting Nader v. Citron, 372 Mass. 96, 98 (1977).
A "complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Citron v. Nader, 372 Mass. 96, 98 (1977), quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Mass.R.Civ.P. 8(f). "A complaint is not subject to dismissal if it could support relief on Any theory of law," Whitinsville, 378 Mass. at 89, "even though the particular relief [which plaintiff] has demanded and the theory on which he seems to rely may not be appropriate." Nader, 372 Mass. at 104 (citations omitted).
ARGUMENTS
1. Where consideration was given and stated in the deed, the real property was not a gift.
It is well-settled that '[t]he basic principle governing the interpretation of deeds is that their meaning, derived from the presumed intent of the grantor, is to be ascertained from the words used in the written instrument, construed when necessary in the light of the attendant circumstances." Sheftel v. Lebel, 44 Mass.App.Ct. 175, 179 (1998), citing J.S. Lang Engr. Co. v. WIlkins Potter Press, 246 Mass. 529, 532 (1923).
Here, the deed was given "for consideration paid, and for no monetary consideration." That is sufficient to constitute consideration. Cf. Vincent v. Torrey, 11 Mass.App.Ct. 463, 465 (1981) (consideration was "love and affection"). Woburn Golf and Ski Authority v. Woburn Country CLub, 365 Mass. 415, 417 (1974) (nominal consideration of $1 sufficient).
a. Where there is no evidence of donative intent on plaintiffs' part, combined with no evidence of the delivery of the property to the defendant, Pocahontas, in a manner that surrenders dominion and control, Pocahontas cannot sustain the transfer as a gift. "As a general rule, to sustain a transfer as a gift, there must be evidence of donative intent on the donor's part, combined with evidence of delivery of the property to the donee, or someone acting on the donee's behalf, in a manner that surrenders dominion and control." Edinburg v. Edinburg, 22 Mass.App.Ct. 199, 204 (1986), cert. denied 398 Mass. 1101 (1986), citing Kobrosky v. Crystal, 332 Mass. 452, 460 (1955) and Silverman v. A. & L. Heel Corp., 353 Mass. 108, 110 (1967).The essentials of an inter vivos gift are (1) donative intention; (2) delivery to donee; in the case of a chose in action not capable of delivery, the donor must during his lifetime strip himself of all dominion over the thing taken; (3) acceptance by donee. Black's Law, citing In re Posey's Estate, 89 N.J. Super. 293, 214 A.2d 713, 719.Here, the senior Smiths continued to live in the Rural Road property after delivering the deed. After Sweet Caroline Smith's demise, John Smith, Sr., continued to, and still does, live in that property. John, Jr. and Pocahontas lived there until 1990, when they moved to Cambridge, where Pocahontas attended Harvard Law School. They married at the end of her first year of law school. After graduation, she became employed, consecutively, at two prestigious Boston law firms: Lawfirm #1 and Lawfirm #2. John, Jr. and Pocahontas returned to Pelickingham at least 50 weekends throughout the year until about 1997. After that date, John, Jr. and the children (who were born on 3 Month 1994) continued to visit Pelickingham almost every weekend, but Pocahontas returned to Pelickingham less frequently: for instance, in 1997, she perhaps went 40 weekends; in 1998, perhaps 20 weekends; and by 1999, no weekends.
The grantors' words in the deed and their conduct are sufficient to establish that there was no donative intent and the property was deeded for consideration, albeit consideration which was breached by one of the grantees, to wit, Pocahontas. Edinburg, 22 Mass.App.Ct. at 206-207 (evidence of donor's words and conduct must be "sufficiently strong to corroborate the donee's position that a gift has been made").
Clearly, the deeding of the property by John, Jr. and his parents to John, Jr. and his bride -- after Pocahontas had been living with the John, Jr.'s biological family for four years -- would not have occurred had any of the grantors believed that the marriage would not last until death parted John, Jr. and Pocahontas. Given that John, Jr. and Pocahontas had lived together for four years, the Smiths believed that the marriage vows were indeed solemn and were meaningful. John, Jr. continued to believe that. Pocahontas did not.
Pocahontas dismisses the reliance by the three biological Smiths -- the grantors -- as one not being reasonable: "Finally, plaintiffs' alleged reliance on the wedding vows as a promise that my husband and I would always be married is not `reasonable reliance' in light of the high rate of divorce." [Pocahontas's Motion to Dismiss, page 5].
"[A] court of equity will not look kindly on one who seeks to benefit by his own turpitude." Edinburg, 22 Mass.App.Ct. at 208, citing Caines v. Sawyer, 248 Mass. 368, 374 (1924).1
1 The cases to which Pocahontas cited are so off-point that the plaintiffs address them in the margin. The first, Fuss v. Fuss (No. 2), 373 Mass. 445 (1977) is not a rescission case. The defendant wife sought reformation of the deed. The grantor sought neither rescission nor reformation. The court held that "[t]he effect of a purported transfer will be determined by the design of the original transaction as understood by the principal actors." Fuss (No. 2), 373 Mass. at 449.Two Fuss cases had been consolidated. The other, not cited by Pocahontas, was an action to validate or annul a Mexican marriage.
Gleason v. Galvin, 374 Mass. 574 (1978), was another annulment case. In it, the defendant waited six years after the annulment to seek partition of the property. Id. at 576. The court held that he waited too long. Id. at 575-576 ("Public policy requires that there must be some limits to the retroactive effects of a decree of annulment").
In contrast, in the case at bar, the plaintiffs are seeking rescission within a year and a half of Pocahontas seeking a divorce. Significant is that one plaintiff here, Smith, was never married to Pocahontas, only John Jr. has been, and still is married to Pocahontas. Given that the rescission is sought before the decree of divorce, the granting of the deed may be undone. Id. at 576.
2. Where there was a failure of consideration by the defendant, Pocahontas, rescission is appropriate.Here, as in Vincent v. Torrey, 11 Mass.App.Ct. 463, 465 (1981), the consideration by the defendant, Pocahontas Smith, was to be continuing. The grantors anticipated that she would stay married to John, Jr. Smith. They would have had no intention of conveying the property had they known Pocahontas was not marrying for life. And as in Vincent, Pocahontas paid with her own funds the real estate taxes for one and maybe two years out of the ten years since her name was put on the deed. Those taxes have been paid by the grantor Smith for eight out of the ten years, giving Smith, at the very least, an equitable lien on the locus as to the real estate taxes he paid. Fuss v. Fuss, 373 Mass. 445, 450-451 (1977) (defendant had equitable lien on the locus to the amount of her payment of the gift tax, plus interest). Unlike Marcia Fuss, no one ever paid gift taxes, either the grantors (the senior Smiths or John, Jr.) or the grantees (John, Jr. or Pocahontas), because the granting of the deed was not a gift.
The senior Smith has also paid all the utility bills over the ten years since granting the deed, and John, Jr. -- who was both grantor and grantee -- has at all times put in "sweat equity" by maintaining and improving the property. Worcester Heritage Soc., Inc. v. Trussell, 31 Mass.App.Ct. 343, 346 (1991) (judge could take into account "sweat equity"). Cf. Maurer v. E.A. Gralia Cons. Co., Inc., 37 Mass.App.Ct. 403, 404 (1994) ("sweat equity" in payment toward stock); Cooper v. Cooper, 43 Mass.App.Ct. 51, 54 (1997) ("sweat equity" toward establishing new venture); Steele v. Kelley, 46 Mass.App.Ct. 712, 718 (1999) ("sweat equity" expended toward renovations).
In Vincent v. Torrey, 11 Mass.App.Ct. 463, 465 (1981), the consideration stated was "`love and affection.'" The master found "and the probate judge merely adopted the master's report" [id. at 467]:
that there "has been a total failure of the intended consideration for the ... 1975 deed," that the Torreys "would be unjustly enriched if ... allowed to retain the ... interest" thereby conveyed to them, and that such retention would be "unconscionable." There is substantial basis in the conduct of the Torreys for the master's further conclusion that the "Torreys did not in good faith intend to live amicably with and help the Vincents at the time they ... accepted" the 1975 deed. Id. at 466. So, too, would Pocahontas be unjustly enriched were she to be allowed to retain the interest conveyed to her by the elder Smiths and John, Jr.."The right to rescind a contract on the ground of failure of consideration exists only where the failure of consideration amounts to an abrogation of the contract, or goes to the essence of it, or takes away its foundation." DeAngelis v. Palladino, 318 Mass. 251, 257 (1945). See 5 Corbin on Contracts (1964) s 1104, at 561-562 ("In the case of a breach by non-performance ..., assuming that there has been no repudiation, the injured party's alternative remedy by way of restitution depends upon the extent of the non-performance by the defendant.... The injured party ... can not maintain an action for restitution of what he has given the defendant unless the defendant's non-performance is so material that it is held to go to the 'essence'...."). See alsoPlumer v. Houghton & Dutton Co., 281 Mass. 173, 175-176 (1932); Vincent v. Torrey, 11 Mass.App.Ct. 463, 466-467 (1981). Worcester Heritage Soc., Inc. v. Trussell, 31 Mass.App.Ct. 343, 345 (1991), emphasis supplied.Subsequently, the Appeals Court in Vincent found:
The judgment should have contained more precise instructions about the relief to be granted, such as (a) that, because of the failure of consideration for the 1975 deed, that deed by way of restitution is declared cancelled and rescinded, and (b) that a copy of the judgment (and of any reconveyance ordered if and when available) is to be placed on record in the appropriate registry of deeds. Id. at 468, emphasis supplied.
3. Parol evidence is admissible to give meaning to language and to show the sense in which particular words were probably used.
From In re Addario, 53 B.R. 335, 337 (Bkrtcy.Mass., 1985), Pocahontas quotes, "Parol evidence is not admissible to prove that parties intended something different from that which the written language of the deed expresses." Plaintiffs do not argue the contrary. Pocahontas has overlooked the key words in the statement: "intended something different" [Pocahontas's Motion to Dismiss, p. 4].
Here the grantors intention is not different than that expressed in the deed. Their intention was subsumed in the deed. In the deed are the words "for consideration paid, and for no monetary consideration." What was the consideration paid? What was the nonmonetary consideration? Smith and John, Jr. contend that the meanings of the italizized words are those which the plaintiffs averred in their Verified Amended Complaint. Smith and John, Jr. also contend that if there were no marriage, there would not have been a transfer. Clearly, this is a jury question. Flesner v. Technical Comm. Corp., 410 Mass. 805 (1991). A reasonable jury could find that if there were no marriage, there would not have been a transfer.
Where words are doubtful or ambiguous, it is appropriate to admit evidence of existing circumstances to give meaning to language and to show the sense in which particular words were probably used. In re Addario, at 337, citing Oldfield v. Smith, 304 Mass. 590 1940 [sic]). "[W]here the language of an instrument is doubtful, evidence of practical construction by the parties is admissible to explain and remove the doubt." Suga v. Maum, 29 Mass.App.Ct. 733, 738 (1991), quoting Commercial Wharf East Condominium Assn. v. Waterfront Parking Corp., 407 Mass. 123, 132 (1990) (discussing intent of the developer), quoting Oldfield, 304 Mass. at 600.Further, "`particular forms of expression standing alone and without resort to the purpose of the instrument in question are not determinative.'" Harrison v. Marcus, 396 Mass. 424, 430 (1985), cite omitted.
Moreover, where there is uncertainty in an instrument, the court has discretion in interpreting provisions of the written instrument. See Ryan v. Brodak, No. 911356, 1999 WL 674246 *3 (Mass.Super.Ct. 1999) (McDonald, J.), citing Billings v. Fowler, 361 Mass. 230, 234 (1972), and Oldfield, supra.
Additionally, "[i]n interpreting the grantor's intent from a deed the trial court is permitted to take into account `material circumstances and pertinent facts known to . . . (the parties) at the time . . . (of execution).'" Darman v. Dunderdale, 362 Mass. 633, 638 (1972), cite omitted. See also Walker v. Walker, 433 Mass. 581, 587 (2001) (trust instrument may be reformed to conform to settlor's intent). "`To ascertain the settlor's intent, we look to the trust instrument as a whole and the circumstances known to the settlor on execution.'" Id, cites omitted. Plaintiffs suggest that the same holds true for deeds. "Indeed, the crucial evidence of intent and mistake may well be available from the lawyer who drafted (or misdrafted) the instrument rather than from the settlor.'" Id. at 587-588, cites omitted. Buk Lhu v. Dignoti, 431 Mass. 292, 296-297 (2000) (proper to reform tax deed to reflect parties' intentions so plaintiffs do not suffer hardship because of error).
The Statute of Frauds, G.L. c. 259, sec. 1, which Pocahontas raised on page 4 of her Motion to Dismiss is a reason for precluding parol evidence, is not applicable because the marriage could have ended within a year.
Where the marriage vows would naturally be omitted from the deed, their absence does not manifest an intent by the parties that they be there merged. They would fall under the exception to the merger doctrine.
a. Where marriage vows would be naturally omitted from a deed, the merger doctrine does not apply.There is an "exception to the merger doctrine for promises 'which are additional or collateral to the main promise to convey the land and are not inconsistent with the deed as given.'" Snyder v. Sperry & Hutchinson Co., 368 Mass. 433, 442 (1975), cite omitted.This exception is limited to covenants which would naturally be omitted from the deed so that their absence in the deed does not manifest an intent by the parties that they be there merged. Id. at 442, citing Restatement: Contracts, ss 413, 240(1)(b) (1932); Restatement 2d: Contracts, s 242(2)(b) and comment d (Tent.Draft 1973); Williston, Contracts (3d ed. 1961) s 645; and Anno. 38 A.L.R.2d 1310, 1320--1323 (1954).By not coming within the merger doctrine, neither the marriage vows nor the grantors' understanding -- that the couple would remain married until death did them part -- were not extinguished by the giving of the deed.
4. Where Pocahontas admits that because there is a high rate of divorce, she believed when she married that she would not stay married, she committed actionable deceit and/or fraud when she spoke the marital vows.2
2 In the instant case, as in Stewart v. Joyce, (No.2), 205 Mass. 371, 374 (1910), the wrong was done when the deceit was practiced. In Stewart (No.2), the court explained the difference between deceit and fraud, and equity and law. Id. at 373. The instant suit has been brought in equity.
In her Motion to Dismiss, Pocahontas essentially admits that because of the "high rate of divorce" [id. at 5], she did not expect that the marriage would last until death parted John, Jr. and her.John, Jr. would not have married her had he known she expected to be divorcing him, and he and his parents would not have conveyed or transferred the property so as to include Pocahontas as a co-owner (as a tenant by the entirety). Clearly, Smith, the elder-now-deceased Mrs. Smith, and John, Jr. were induced or misled by Pocahontas's deception, by uttering the solemnized marital vows, into conveying or transfering the property. Pocahontas's misrepresentations to the three biologically-related grantors were actionable deceit. Stewart v. Joyce, 201 Mass. 301, 309 (1909).
Pocahontas knew her vows were false. She also knew of the plaintiffs' ignorance of the falsehood and of their reliance on her vow to stay in the marriage til death did John, Jr. and her part. No further proof of her intention that the representation should be acted upon was necessary. Stewart, 201 Mass. at 310, and cases gathered there. "[R]eformation is justified if the party knowing of the mistake fails to make it known to the mistaken party, but the result is based on analogy to misrepresentation by silence. Torrao v. Cox, 26 Mass.App.Ct. 247, 250-251 (1988), citing Restatement (Second) of Contracts sec. 161(c) (1981).
Under the rule stated in sec. 153 of the Restatement, "[w]here a mistake of one party at the time a contract was made as to a basic assumption on which he made the contract has a material effect on the agreed exchange of performances that is adverse to him, the contract is voidable by him if he does not bear the risk of the mistake ... and ... (b) the other party had reason to know of the mistake...." Torrao, at 251. "`Voidable' in this rule suggests rescission, as opposed to reformation, but sec. 158 makes clear that courts are flexible in framing appropriate equitable relief in any situation governed by sec. 153." Id., note 5.All the essential elements of actionable deceit and/or fraud, whether at law for damages, or in equity for rescission, are found to have been present in a deliberate misrepresentation of facts peculiarly within Pocahontas's knowledge, upon which the grantors relied, and had the right to rely, when made by Pocahontas, and by which the grantors were deceived and induced to convey to her the real property for less than its market value. Id.
It is well-settled law that the state of mind of each of these parties is a question to be left to a jury to decide. Flesner v. Technical Comm. Corp., 410 Mass. 805 (1991) (state of mind is for the jury to decide). The evidence would warrant a jury to find that the plaintiffs acted in reliance upon Pocahontas's misrepresentations and that if there were no marriage, there would not have been a transfer. Cf. Harvey v. Squire, 217 Mass. 411, 416 (1914).
Being thus deceived and/or defrauded, the grantors are entitled to rescission. Ginn v. Almy, 212 Mass. 486, 493 (1912); Kannavos v. Annino, 356 Mass. 42, 49-50 (1969).
5. Where Pocahontas expressly or impliedly represented that she would honor the solemn marital vows and stay married to John, Jr. until death parted them, but Pocahontas had no intention of honoring them, she committed actionable fraud.
John, Jr. and Pocahontas had a contract of marriage. Trustees of Dartmouth College v. Woodward, 17 U.S. 519, 627 (Wheat.) (1819). The conveyance or transfer of the real property on Rural Road also arose out of a contract, an implied-in-fact contract.
An implied-in-fact contract comes into being when, notwithstanding the absence of a written agreement, or verbal agreement expressing mutual obligations, the conduct or relations of the parties imply the existence of a contract. Popponesset Beach Ass'n, Inc. v. Marchillo, 39 Mass.App.Ct. 586 (1996), citing LiDonni v. Hart, 355 Mass. 580, 583 (1969). By her conduct, to wit by speaking the solemn marital vows and marrying John, Jr., Pocahontas gave the plaintiffs to understand that she would remain married to John, Jr.. Cf. LiDonni, at 583. "[T]he terms of any valid express or implied agreement [may be considered] to determine intent." King. v. Trustees of Boston University, 420 Mass. 52, 60 n. 5 (1995), citing Fuss, 373 Mass. at 449.If there were no marriage, there would not have been a transfer. Where misrepresentations are sufficient to justify a finding of fraud or undue influence over a person so as to influence a person to convey 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) (if plaintiff relied on "`misrepresentations, either intentionally or negligently made,' or relied even on "a false, though innocent, representation which concerns a matter susceptible of knowledge, there is a basis for rescission); Lang v. Giraudo, 311 Mass. 132, 138 (1942). The latter proposition of Bellefeuille is also cited in Walsh v. Chestnut Hill Bank & Trust Co., 414 Mass. 283, 288 (1993).
Damages for deceit and fraud may be in equity or at law. Urman v. South Boston Sav. Bank, 424 Mass. 165, 166 (1997). 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 damages 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).3
See also Marshall V. Marshall, 10 Mass.App.Ct. 893, 894 (1980) (rescission appropriate where son used undue influence to induce 84-year-old mother to execute real estate documents conveying real property).3 At law, the damages for an action in deceit is "`the difference in actual value between that which the plaintiff in fact got and that which he would have got if the representation had been true." Bellefeuille, 335 Mass. at 266 (cites omitted).
"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." Gilman, 1995 WL 1146216 at *4, citing Beaton v. Land Court, 367 Mass. 385, 392 (1975); Brodie v. Evirs, 313 Mass. 741, 744 (1943).
6. Where Pocahontas defrauded the two Plaintiff-grantors and the deceased-grantor, Caroline Smith, and where John, Jr. did not defraud his grantor-parents and has an enforceable interest in the property, John, Jr. is entitled to have the deed reformed so as to leave only himself as the grantee on the deed.
"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). In the instant case, Pocahontas knew that John, Jr. did not have the intent of divorcing Pocahontas; he was marrying for life; and he, like his parents, would not have conveyed title had he known she was not marrying for life. Cf.Buk Lhu v. Dignoti, 431 Mass. 292, 296-297 (2000) (proper to reform tax deed to reflect parties' intentions so plaintiffs do not suffer hardship because of error). See also Walker v. Walker, 433 Mass. 581, 587 (2001) (trust instrument may be reformed to conform to settlor's intent).
CONCLUSION
Pocahontas concludes with, "Just as one cannot presume from a breach of contract that the breaching party never intended to perform, one cannot presume from a divorce that the party seeking the divorce never intended to stay married."
Pocahontas concludes with the statement that she believes any reliance of on the marriage vows is not reasonable. That is a question for the jury to decide.
WHEREFORE, Plaintiffs pray this motion be allowed and that attorney's fees an d costs for having to oppose Pocahontas's frivolous motion be allowed pursuant to G.L. 231, sec. 6F.
16 August 2001 Barbara C. Johnson, Esq.Respectfully submitted,
PLAINTIFF JOHN SMITH, SR.
PLAINTIFF JOHN SMITH, JR.
By his attorney,Barbara C. Johnson
6 Appletree Lane
Andover, MA 01810-4102
978-474-0833
CERTIFICATE OF SERVICE
I, Barbara C. Johnson, counsel for JOHN SMITH, hereby certify that on a 16 August 2001 I served by first-class mail a true and accurate copy of the within pleading on ...................
16 August 2001 Barbara C. Johnson