Ernest Corriveau et al. v. Norman MacDonald (2011)

MEMORANDUM OF DECISION

As the plaintiffs note in their post-trial brief the “central issue” in this case is their request that the deed by which they conveyed land to the defendant be reformed.   As set forth in the allegations of the complaint the deed received by the defendant “was recorded at Volume 1010, page 989 of the Wallingford Land Records and described a parcel of real property much larger than the parcel intended to be sold and described a parcel that had not been agreed upon by the parties to the conveyance (par. 13), the deed recorded did not conform to the real contract agreed upon and did not express the intention of the parties as a result of the mutual mistake of the parties ․” (par 14).   A mortgagee, Dutch Point Credit Union, also appeared in the case at trial which has an interest in the property which may be affected by the judgment in this case.

It is also true that counts of promissory estoppel and unjust enrichment were asserted against the defendants in an amended complaint.   But the plaintiffs' claims clearly depend on resolution of the request for reformation of the deed.

The power of a court to reform any contract, including a conveyance of land reflected in a deed, was defined in Derby Savings Bank v. Oliwa, 49 Conn.App. 602, 603–04 (1998), which quoted from earlier case law:

“A cause of action for reformation of a contract rests on the equitable theory that the instrument sought to be reformed does not conform to the real contract agreed upon and does not express the intention of the parties and that it was executed as a result of mutual mistake ․ We have held that this also applies to actions for reformation of a deed ․ the function of which is merely to pass title to land, pursuant to the agreement of the parties ․ Reformation is not granted for the purpose of alleviating a hard or oppressive bargain, but rather to restate the intended terms of an agreement when the writing that memorializes that agreement is at variance with the intent of both parties ․ Equity evolved the doctrine because an action at law afforded no relief against an instrument [which was] a result of mutual mistake.   (Citations omitted;  internal quotation marks omitted.)  Lopinto v. Haines, 185 Conn. 527, 531–32, 441 A.2d 151 (1981).

Reformation is appropriate in cases of mutual mistake—that is where, in reducing to writing an agreement made or transaction entered into as intended by the parties thereto, through mistake, common to both parties, the written instrument fails to express the real agreement or transaction ․ [R]eformation is also available in equity when the instrument does not express the true intent of the parties owing to the mistake of one party ․ (Citations omitted;  internal quotation marks omitted.)  Harlach v. Metropolitan Property & Liability Ins., Co., 221 Conn. 185, 190–91, 602 A.2d 1007 (1992).”   Also see Blow v. Konetchy, 107 Conn.App. 777, 792 (2008).

The Lopinto court added the observation “․ the mistake common to both parties, effects a result which neither intended.”   The Harlach case also noted, quoting from Pomeroy's Equity Jurisprudence, that reformation is also “available in equity when the instrument does not express the true intent of the parties owing to a mistake of one party coupled with fraud, actual or constructive, or inequitable conduct on the part of the other,” 221 Conn. at page 191.

The Lopinto court also emphasized that the standard of proof necessary for a court to reform a deed is not merely preponderance of the evidence as in other civil actions:

The evolution of the equitable doctrine of reformation providing, as it does, relief where none was provided at law against an instrument secured by fraud and mistake has properly been said to require evidence of a very high order” to overcome what the New York Court of Appeals calls “the heavy presumption that a deliberately prepared and executed written instrument manifested the true intention of the parties ․ We have stated the standard of proof for reformation in different ways but all with the same substantive thrust:  evidence should be clear, substantial and convincing ․

at 185 Conn. 533–34.

At page 535 the court said:  “Where fraud is absent, ‘it must be established that both parties agreed to something different from what is expressed in writing, and the proof on this point should be clear as to leave no room for doubt ․ Greenwich Constructing Co. v. Clay Fire & Marine Co., 156 Conn. 123, 127 (1968).”

Connecticut follows the general law in this area, see 66 Am.Jur.2d:  Reformation of Instruments, § 53, “Description and Identity of Property;” Powell on Real Property Vol. 14 at § 81.07(3)(a), page 81A–138 et seq., where section is entitled “Reformation of a Deed is an Equitable Remedy to Prevent Injustice.”   The court could not find Connecticut appellate cases with the precise factual issue presented here in the context of reformation but at page 81A–141 Powell notes:  “An action to reform may also be initiated to correct an error in the description of the land or interest conveyed.   The result of the reformation action may be the inclusion of land which was not previously described or the exclusion of land which was previously included,” see footnote 38 for cases from other jurisdictions.   Also in Donohue v. Picinick, 852 F.Sup. 144, 148–49 (D.Conn., 1994) Connecticut law on reformation was applied by the District Court to order boundaries on two lots to be redrawn so that the plaintiff could receive an entire pond area which was currently located on two lots.   See also Am.Jur. article for the same principle at § 53, page 271 with cases cited in footnote 7.

For an issue that arises in this case see also Restatement (2d) Contracts which at § 155 discusses the remedy of reformation and in comment (a) at page 407 makes the observation that:  “Reformation is not precluded by the mere fact that the party who seeks it failed to exercise reasonable care in reading the writing, but the right to reformation is subject to the rule on fault stated in § 157.”   That rule states:

§ 157.  Effect of Fault of Party Seeking Relief.

A mistaken party's fault in failing to know or discover the facts before making the contract does not bar him from avoidance or reformation under the rules stated in this Chapter, unless his fault amounts to a failure to act in good faith and in accordance with reasonable standards of fair dealing.

Finally for legal reference the court relies on the always helpful discussion in Calamari and Perillo on Contracts, Joseph Perillo, 6th ed.   Sections 9.31, et. seq., pp. 326 to 331 discussing Reformation.   Perillo at pp. 326–27 notes “the limited scope for reformation.   Contracts are not reformed for mistake;  records are.   The distinction is crucial.   With rare exceptions, courts have been tenacious in refusing to remake a bargain entered into because of mistake.   They will, however, rewrite a record that does not express the bargain.   Stated another way, courts give effect to the expressed will of the parties:  they will not second guess what the parties would have agreed to if they had known the facts.”   Then he says in a remarkable understatement:  “At times the distinction is very difficult to apply.”

Perillo sums up the law as to reformation at page 327 as it relates to mistake:

The requisites for reformation on grounds of mistake are three, although four are often stated.   First, there must have been an agreement between the parties.   Second, there must have been an agreement to put the agreement into a record.   Third, a variance between the prior agreement and the record exists.   The often-stated fourth requisite is that the mistake be mutual.   However, exception cases of misrepresentation, every unintended variance between the prior agreement and the record is deemed to constitute a mutual mistake.   Consequently, except in misrepresentation cases, the fourth element is included in the third.   When courts speak of mutuality of the mistake, they usually mean that a mistaken belief by one party alone that the record will contain a given provision is not a ground for reformation.   This, however, is encompassed in the requisite that there be a prior agreement that the provision be included in the record.   Thus, the mutual-unilateral mistake dichotomy adds nothing to the analysis of reformation problems.   Some scholars and courts have recognized this fact.

At Section 9.34, pp.   328–29 Perillo notes:  “The variance between the original agreement and the record may take any one of a variety of forms.   Typically there ‘is the insertion of an incorrect description of the subject matter;  street numbers, survey numbers, boundary lines,’ etc.”   The Connecticut District Court opinion of Donohue v. Picinick, supra is cited for this observation.

Perillo ends his discussion of this topic with Section 9.36 entitled “Defenses to Reformation.”   There it is said:

The courts will not grant reformation if its effect would be to curtail the rights of a bona fide purchaser for value or others who have relied on the record.   Normally reformation will not be given against a donor of a gratuitous conveyance or other instrument of gift.

Many tortured opinions have been written on the question of the negligence of the claimant to reformation.   Where one party carelessly believes that a record contains a certain clause or produces a given result and this belief is neither shared nor induced by the other, the temptation is to deny relief on the ground of the petitioner's negligence.   A sounder ground, however, is that the record does not misstate the prior agreement.   The weight of authority is that if the requisites of reformation are met, negligence is not a bar to reformation unless the negligence has in some way harmed the other, non-negligent, party.

As to the last comments on whether negligence is a bar to recovery Perillo refers to § 157 of Restatement (2d) Contracts quoted previously.

Comment (a) of Section 157 refers in turn to Section 205 of the Restatement which appears to adopt the Uniform Commercial Code definition of “good faith” expressed in § 1–201(19):  “honesty in fact in the conduct or transaction concerned.”

B

Although there is certainly dispute about the nature of the agreement between the parties, the legal implications of various facts in the case and issues of credibility, there does not seem to be much dispute as to certain facts of the case which the parties refer to in their briefs.   The court will try to set those facts out.

On July 19, 1963 the plaintiff acquired property on Highland Avenue in Wallingford.   In 1988 the plaintiffs subdivided the property into two lots, 34 and 36 Highland Avenue.   This subdivision was reflected in subdivision map 3834 (1988 map) and the plaintiffs filed this map in the Wallingford Town Clerk's Office.   In 1992 the plaintiffs sold 34 Highland to their son;  the deed referenced lot 2 on the 1988 map.   In August 2001 the plaintiffs recorded another map, 4719 (2001 map) in the town clerk's office which reconfigured 34 and 36 Highland Avenue.   No conveyance of the reconfigured lot 2 was executed or recorded as such in the town land records.   This reconfiguration reflected an addition of the rear portion of lot 1 (36 Highland) on the 1988 map to lot 2 (34 Highland) of the same map.

The plaintiffs decided to sell 36 Highland in the fall of 2001 and negotiations between them and the defendants for sale of the property began, which the court will discuss later in this opinion.   The plaintiffs then contacted their lawyer to draw up a contract for sale of the property which was the result of these negotiations.   The contract referred to 36 Highland Avenue but contained no other map references or description of the property.

After the contract had been executed the defendants arranged for financing to purchase the property and as part of the closing process provided a title insurance commitment in which “CATIC” committed itself to issue to the defendant a policy of title insurance.   This commitment contained a property description by reference to Lot 1 (36 Highland) on the 1988 map.

At the closing plaintiffs did not attend but their lawyer did;  the deed that was prepared by plaintiff's counsel and executed by the plaintiffs was delivered to the defendant for the agreed upon purchase price.   In conjunction with preparation for the closing the buyer's attorney performed a title search and turned it over to the seller's attorney.   The title search failed to reveal the 2001 map, however, and in any event the mortgage which secured the purchase money loan as well as the deed contained reference only to the 1988 map.

In August 2009 suit was commenced against Norman Macdonald seeking reformation.   In March 2010 the complaint was amended by the plaintiffs adding two defendants, Mortgage Electronic Systems Inc., and Dutch Point Credit Union Inc. and two new counts, one lying in promissory estoppel, the other in unjust enrichment.

Various additional facts were developed at trial and those facts were often in dispute.   The court will discuss these facts during its opinion.

C

The court will first discuss the count that lies in reformation.   That aspect of this doctrine which is advanced by the plaintiffs is summed up in three paragraphs of the Amended Complaint.

13. The deed received by Norman Macdonald at the closing was recorded at volume 1010, page 989 of the Wallingford Land Records and described a parcel of real property much larger than the parcel intended to be sold and described a parcel that had not been agreed upon by the parties to the conveyance.

14. The deed recorded at Volume 1010, page 989, did not conform to the real contract agreed upon and did not express the intention of the parties as a result of the mutual mistake of the parties precipitated by the mistake of the buyers title searcher in failing to reference Map 4719 recorded August 24, 2001 on the Wallingford Land Records.

18. The deed recorded at Volume 1010, page 989 ought to be reformed to conform to the description set forth in the Orsine Map # 4719 as that map reflects the agreement of the parties and the deed does not express the agreement or intent of the parties formed at the time of the agreement for purchase and sale.

These allegations are well-stated references to the law discussed previously.   Reformation applies to reformation of a deed based on a contract of sale and its purpose is to “restate the intended terms of an agreement when the writing that memorializes that agreement (here the deed) is at variance with the intent of both parties,” Derby Savings Bank v. Oliwa, 49 Conn.App. at p. 603–04.

(i)

This has been a difficult case for the court because the decision in large part turns on credibility of two sets of nice people testifying about events that occurred nine years before involving a land dispute which tends to arouse people's passions.   In such a situation human nature often induces the creation of memories favoring one's personal interests but not based on fact albeit without any conscious intention to mislead or misrepresent.

How does one determine the nature of the agreement between the parties and as understood by them regarding the purchase of 36 Highland by Mr. Macdonald specifically as it relates to the size or area of the property which was being transferred?   If the deed which was to and indeed required to memorialize that agreement did not accurately reflect that agreement, reformation would be available as a remedy.

In this case the plaintiffs sought to prove the mutual agreement of the parties, that 36 Highland was only to contain 1/2 acre, by referring to facts that occurred during negotiations between them.   The negotiations led to a contract and the contract was followed by the closing where the deed was delivered to the buyers.

They then testified to incidents subsequent to the closing concerning behavior and actions by the Macdonalds and themselves which it is claimed would also allow the court to infer both parties to this land transaction had the understanding at the time of contract formation that the 36 Highland lot was to be 1/2 acre and did not include the rear portion shown on the 1988 map, map number 3834.   As Tait and Prescott point out in Handbook of Connecticut Evidence “inferences should be based on probabilities, not possibilities, surmise or conjecture,” citing Maycock v. Martin, 157 Conn. 56, 66 (1968), and also any inference must be a reasonable one, State v. Tatam, 194 Conn. 594, 598 (1984), see Tait at § 4.3. land § 4.3.2, pp 139–40.

First, the court will present evidence offered by the plaintiffs to establish their contention that the contractual agreement they had with Mr. Macdonald to sell him 36 Highland was understood by both sides to involve a lot of approximately 1/2 acre.   Mrs. Corriveau testified that when she and her husband decided to offer 36 Highland Street for sale they wanted to only have a 1/2 acre with the rest going to 34 Highland.   Attorney Vishno was retained by the plaintiffs to handle the transaction and Mrs. Corriveau said she told him 36 Highland was only to have 1/2 acre of land.   She stated that at the various times the Macdonalds came to her home during the negotiating process leading up to the contract of sale, she had the 2001 map (# 4719) put out on the kitchen counter and in fact showed it to both Mr. and Mrs. Macdonald.   An examination of that map shows the number # 4719 written boldly on the bottom portion in fairly large print;  it also shows sharp demarcation lines separating the .04 acres of 36 Highland from the former rear portion of a lot that was shown to be attached to this “new” lot in the 1988 map.   Anyone shown this map would see that 36 Highland is a lot of approximately 1/2 acre.

Mrs. Corriveau testified that Mrs. Macdonald ran a day care center and planned to continue to do so at the 36 Highland address if the sale went through.   Mr. Macdonald expressed concern about a pond on their property, stating to operate a day care center there could not be a pond on the property.   Mrs. Macdonald was concerned about this during the negotiations, she just wanted to know if the pond was on the property they were purchasing.   Both Macdonalds, according to Mrs. Corriveau, said they did not want the pond and 1/2 acre was more than enough.   When Mrs. Macdonald came by herself to the Corriveaus, before the contract was signed, Mrs. Corriveau said she showed her the pin in the driveway between the two properties which marked the 1/2 acre lot representing 36 Highland and the pond was far away.

In fact, said Mrs. Corriveau, an inspector from the State came to look at the property and Mrs. Macdonald told this person that the 36 Highland lot only went up to this just mentioned pin or pole.

On October 31, 2001 the parties, Mr. Macdonald and the Corriveaus signed a “standard form Residential Real Estate Sales Agreement.”   Nothing in this contract would dispel the notion that 36 Highland was only to have a lot 1/2 acre in size.   It contained no map reference and did not set forth the metes and bounds of the lot that was the subject of the sale.   Mrs. Corriveau does not remember if the 2001 map (# 4719) was present during the contract signing but testified adamantly that when she signed the contract she thought she was selling 36 Highland which had a house on it and was to have a 1/2 acre lot.

The deed is dated November 30, 2001 and was signed by the Corriveaus.   They did so the day before the actual closing.   Their lawyer took their oath to the effect that the deed was acknowledged before him on the above date.   A little more than a third of the way down the first page of the deed it notes “Lot 1” is being sold as per a resubdivision map of the Corriveaus' property prepared by a Mr. Kwiathowski and then it says “Subject 10(1) Notes, yardlines and wetlands as shown on Map dated 4/18/88 and recorded 8/30/88 as map 3834.”

The Corriveaus' contention that the parties to this transaction mutually understood that 36 Highland would have a lot 1/2 acre in size, however, is not limited to the foregoing testimony of Mr. Corriveau but is confirmed by events that occurred after the closing.

Mrs. Corriveau testified to several incidents which she claims indicated that the Macdonalds realized that only a half acre was being conveyed.

In the spring of 2002 the Macdonalds put up a dog fence which encroached on the Corriveau property.   The fence consisted of an underground wire that when first put up was marked with flags.   She complained to Mr. Macdonald who apologized and had the fence placed on his property line and he knew where that was;  the fence was then in his 1/2 acre.

In the fall of 2002 Mr. Macdonald picked up leaves in his yard and dumped them behind the pond;  Mrs. Corriveau called to say he could not do that.   Macdonald then had a truck come to remove the leaves.

Mrs. Corriveau also said she and her husband had lived at 34 Highland for many years and her husband, Ernest Corriveau, would like to clean up the wooded area on the rear lot area and stack up wood.   He did this every summer.   Mr. Macdonald offered no objection to this.   In 2003 the Macdonalds' set up a badminton net on the property outside the 36 Highland 1/2 acre.   They were told to move it and they did.

In 2004 the Corriveaus “realized there might have been a mistake” and she called her lawyer to have it cleared up.   Mr. Corriveau did not testify and Mrs. Corriveau was “not positive” but she thinks her husband had been to the Wallingford town hall looking up records for property they owned downtown.   He came across two maps, “we knew there were two maps” but they then realized the Macdonald deed read the same as the deed at 36 Highland when they owned it—referencing the 1988 map, # 3834.

Not surprisingly the Macdonalds have a very different view of the ambit of the agreement they were entering into with the Corriveaus.   Mrs. Macdonald testified first and she said during the negotiation period that she and her husband walked the property.   They walked to the pond area.   The first visit to the property was made by Mr. Macdonald.

As noted Mrs. Macdonald runs a day care center.   The State Department of Public Health licenses day care providers and to renew ones license to run a day care center an inspector from the Department examines the property to be used as such a facility.   The court has examined Exhibit 8 which includes the inspection reports made by the state, contained in the 106 page document subpoenaed from the Department of Public Health (of which more later).   In any event in accordance with State policy to protect its children a state worker came to the 36 Highland address to examine the house located on the property and the property itself.   The forms reflecting the inspection and the categories to be evaluated explicitly indicate that a house and property inspection must be made.   Mrs. Macdonald testified that a state worker did come to inspect the property on November 13, 2001.   She said she told the worker that “our property” had a small muddy body of water that would have more water in it in the spring.”   She testified she walked to the end of the pond with the worker and denied that Mrs. Corriveau accompanied them.   At the time of the inspection there was just a muddy area with no water in it.

Mrs. Corriveau, according to Mrs. Macdonald, told her that the tree houses would provide fun and entertainment to the Macdonalds' four kids just as it did for her kids.   One of the tree houses was in the rear of the lot in back of the pond.   Mrs. Corriveau also said the children could fish in and skate on the pond as the Corriveau children had.   Mrs. Macdonald also said skates were left for this purpose.   In effect Mrs. Macdonald had no memory of a conversation with Mrs. Corriveau to the effect that the pond did not go with the property and she further said Mrs. Corriveau did not tell the state worker that she and her husband did not own the pond, nor did she tell the worker that.

She also testified that Mr. Corriveau did dump material in back of the pond—tree branches, clippings from the Corriveaus' Branford property—but Mrs. Macdonald testified that he asked permission before he did so.

On cross-examination Mrs. Macdonald testified that she and her husband had an agreement that they would plow the driveway and parking areas in winter—the properties shared a common driveway and the Corriveaus would take care of the lawn.   As to the dog fence Mrs. Macdonald said that they were asked to move it because it was too close to the shrubbery in front of the Corriveaus' apartment.   Mrs. Macdonald drew the ambit of the underground dog fence and indicated it went beyond the claimed 1/2 acre limit to their property and back toward the pond.

Mr. Macdonald also testified.   He stated on the second visit to the property he walked to the back wooded area with Mr. Corriveau.   He testified that he made the third visit, which was also part of the negotiating process, by himself.   He tried to negotiate the price down but the Corriveaus would not budge although he told them that with a pond in back the insurance rates might be higher.

He denied being shown a map.   There was a map on the coffee table along with other documents;  he looked at it and it was designated as # 3834, the 1988 map, Macdonald denies seeing map # 4719 during the time he made visits to the Corriveaus to negotiate purchase of the property.   Mr. Macdonald said he walked the property only with Mrs. Corriveau.   As to use of the property by Mr. Corriveau after the purchase, Mrs. Corriveau asked if her husband could be permitted to use it.   He had had a stroke and loved “to play” in the rear lot area—mow the lawn areas, hang out in the woods and clean it up, and chop down some trees.

Mr. Macdonald also said he would have negotiated the price down if only a 1/2 acre was to be the extent of 36 Highland property.   A house of the size he bought would require a larger lot.   Interestingly neither side brought in appraisers to testify about the estimated value of the property with its house on 1/2 acre, as opposed to being on a lot stretching to the rear of 36 Highland and relating all that to the price actually paid.

In any event Mr. Macdonald said he first became aware of the 2001 map, # 4719 after a 2004 incident between his wife and Mr. Corriveau.   He allegedly yelled at her saying the Macdonalds stole his land.   Mr. Macdonald said as a result of that incident he went to the Wallingford Town Hall where the deed was pulled for him and then a clerk pulled a second map which was the 2001 map, # 4719.

Mr. Macdonald testified that from 2001 when he bought the property to the 2004 “incident” Mr. Corriveau had made no comments as to what had been sold to the Macdonalds.   From 2004 to 2009 Mr. Macdonald also said he did not hear anything from Mr. Corriveau regarding the property.

Mr. Macdonald also testified that in 2004 he took over mowing from Mr. Corriveau, he had not been showing up to do it for months at a time according to Mr. Macdonald's testimony.

He also stated he always had gathered leaves and brush from the rear area from the day his family moved into 36 Highland.   His children played in the tree house in back of the pond until 2005 when he tore it down and he was not challenged about that.

Mr. Macdonald also said that there was a shed at the “261.2” location on the # 4719 map, on the left hand side apparently and beyond the 1/2 acre which was claimed to be the limit of the property he had purchased.   Mr. Macdonald said he used this shed in the rear portion of the land since he moved in and it was used to store outdoor day care toys and he put a lock on it.   The Corriveaus did not use the shed and never claimed it belonged to them.

Mr. Macdonald disagreed with several statements made by Mrs. Corriveau.   He agreed with his wife that Mrs. Corriveau wanted them to move the dog fence, she did not want dog droppings (for want of a better term) in her yard.   Mr. Macdonald said, however, that he only moved a portion of the fence from the area of the Corriveau house and did nothing with respect to the rest of fence—it was not removed from the pond area or anywhere else.

He said he has continually put leaves in the area in back of the pond;  he removed no leaves but, in fact added to them.   In that regard Macdonald testified that he agreed with his wife that Mr. Corriveau asked permission to dump material from the Corriveau house in Branford.

Macdonald denies he was told he was only buying a 1/2 acre of land or that he told Mrs. Corriveau he could not buy the property if it had a pond on it or that he told her 1/2 acre was more than enough.

C

Was the prior agreement between the parties to in fact sell 36 Highland as a 1/2 acre property?   Did the resultant deed, based on reference to the older deed, as a result of a faulty title search by the defendant buyers' lawyers or agents, defeat the purpose of the actual agreement to sell the Macdonalds only 1/2 acre?   Or to put it another way was the contract to sell the parcel reflective of an agreement that 36 Highland would contain 1/2 acre and must the deed subsequently transferring the property be reformed to reflect the agreement of the parties.

The facts developed at trial provide a tit-for-tat approach that make the issue hard to resolve nine years after the fact with a contract that is uninformative on the issue and an agreement negotiated by the parties themselves that has basically dissolved into a he said, she said dispute.

But keeping in mind the heavy burden placed on a party seeking reformation the court concludes the plaintiffs have not carried that burden.   The court will set forth the various reasons why it has reached that conclusion as it has laid out the factual claims so that if it has committed error it can be more easily corrected.

(i)

The first issue is that of the pond.   The court has examined the Department of Public Health records.   It documents five home visits made to 36 Highland with an inspection form listing numerous things that must be checked off on by the state worker making the home visit.   The inspection forms are dated 12/5/01, 4/30/03, 6/17/05, 7/8/08, and 1/29/10.   Two things are apparent from an inspection of these forms (1) it does not appear that a day care license could not be issued if there was a body of water on the property (2) there in fact was a body of water, i.e., a pond on the property meant to be conveyed to the Macdonalds—at the very least the Macdonalds were not mistaken in believing the rear section including the pond and the woods behind it were being conveyed to them as a result of the agreement they reached with the Corriveau's prior to the closing.   The 12/05/01 inspection form under “bodies of water” has “n” circled not “y” indicating none.   But that is perfectly consistent with testimony presented by the defendant that the pond dries up—at the time of the 2001 inspection there was just a mud pit according to Mrs. Macdonald and in fact an 11/13/01 report styles itself as a “preliminary inspection” and it says “concern approx. 1. acre back mud pit!”   This mud pit equation with a pond area is corroborated somewhat by the 1988 map, # 3834 which has a finger shaped circled area in the right corner with an indication of the limit of the pond “at high mark.”

More to the point the 4/30/03 home visit report under bodies of water circles “y” for yes, the 6/17/05 report has an inquiry entitled “Body of Water—Type”—the word “pond” is written in by the worker.   The 7/8/08 inspection form has the same inquiry with the same written in word “pond,” the same inquiry and notation appears on the 1/29/10 form.   After each of these inspections a license to operate a day care center was issued.   Furthermore the 4/30/03 inspection report lists a “body of water” the year before the 2004 “incident” when Mr. Corriveau accused the Macdonalds of stealing his property.   The question remains why would Mrs. Macdonald lead the state worker in 2001 around property to the rear of her only 1/2 acre lot which contained a mud pit (mud which is caused by the accretion of water) and in 2003 if she did not have a belief that in acquiring 36 Highland her family was not acquiring the pond and the entire lot to the rear of the 36 Highland property depicted on the 2001, # 4719 map?   Was she trying to make as many difficulties as possible for herself to acquire a day care license or put possible impediments in acquiring such a license.   All of this confirms, to the court at least that the Macdonalds were of the opinion that their purchase was not limited to a 1/2 acre purchase in negotiating a contract for that purchase.

The foregoing casts doubt in the court's mind on the memory of Mrs. Corriveau regarding her statements to Mrs. Macdonald about where the property line for 36 Highland was and that she showed the state worker also that the Macdonald property would be limited to 1/2 acre with the pond being far away.   Why would the inspector go look for a mud pit?   It's the claim that there was a mud pit on the 1/2 acre in 2001?   What of the April 2003 inspection which listed a body of water on the Macdonald property?

(ii)

Perhaps it is a minor point but there was a shed on the rear portion of the property which the Macdonalds claim is owned by them and is beyond any 1/2 acre demarcation.   The testimony was uncontradicted that he used the shed exclusively and did so without asking permission.   He also put a lock on the shed.   Why would that be so if he and the Corriveaus did not assume at the time the land was transferred that the shed would be on Macdonald property.

The dog fence raises similar inferences.   It is an underground fence, flags are placed on its contours, Mrs. Corriveau claimed it encroached on her property line.

It went to her garden and back toward the pond area.   Upon her complaint Mr. Macdonald moved the fence to his half-acre.   From what the court can make of the transcript she drew in yellow pencil on Exhibit 4a where the fence was moved to by Mr. Macdonald.   It is an extremely small area in the upper right hand corner of 36 Highland as it appears on this smaller duplicate map of # 4719.   From a rough estimate of footage markings on the map the rectangular area appears to measure somewhere in the range of 45 to 50 feet in length by less than half of that in width.   Mr. and Mrs. Macdonald's testimony to effect that the fence was only moved as it abutted Mrs. Corriveau's garden and otherwise extended into the rear lot to the pond area seems to be a more reasonable inference than the Corriveau depiction of the reformed dog fence area on the 1/2 acre.

(iii)

As to the deed itself, to the court it presents an indication that both parties knew exactly what they were doing and how much land was being transferred at the time the contract was made to sell the land.

The deed, exhibit 5, is two pages in length with the second page being just an acknowledgement page.   In the center of the deed is a reference to the 1988 map, # 3834, which was recorded as such.   This map, as noted, reflects a division of 34 Highland into two lots, 34 and 36 and the 36 Highland address would have the full rear lot attached to it including the pond area representing the parcel the Macdonalds claim they had agreed to purchase.   Mr. and Mrs. Corriveau both signed the deed the day before the closing.   Attorney Vishno, their lawyer, said it was his custom to review a deed with the clients before they signed it.   What else would an attorney do in this situation—it is a one-page document after all, not some lengthy and complicated legal tome.   Attorney Vishno had no present memory of the encounter, he noted he was testifying to events that transpired nine years before.   Mrs. Corriveau said she did not read the deed and doesn't remember signing it and she does not recall Vishno going over the deed with her.   First it should be noted that as Powell says at § 81A–142.1 (§ 81A.07(3)(e), referring to deeds,

The courts seem to be in general agreement that the fact the person seeking reformation did not read the document to ascertain the error or that the person had constructive notice of the defect does not deny that person the right to reformation.   If the rule were to the contrary, it is difficult to imagine any case where the remedy (of reformation) would ever be available.

Powell cites several cases for the general view.  Kemina v. Graver, 630 SW.2d 160 (Mo.Ct.App., 1982);  City of Fargo v. DTL Properties, Inc., 564 NW.2d 274 (N.D.1997);  Hill v. Spencer & Sons, Inc., 973 SW.2d 772 (Tex.App.1998);  State Bank v. Elsen, 383 NW.2d 916 (Wisc., 1980).   The court has found no Connecticut cases on point but it is a rule based on common sense if we are going to have the remedy of reformation at all.

But under the particular and somewhat peculiar facts of this case, the court can draw an inference from the claim being made that the deed was not read.   Mrs. Corriveau made a point of testifying that she showed the 2001 map, # 4719, to the Macdonalds during the negotiations leading up to the contract of sale.   She certainly knew the significance of a map setting forth a property description.   She appeared to be a highly intelligent woman.   She said she “absolutely” had the 2001 map at home but not the # 3384 map, she was not even sure of its number.   But that is the map that subdivided 34 Highland into 34 and 36 Highland.   In 1992 the plaintiffs sold 34 Highland to their son and the deed accomplishing that result referred to the 1988 map.   It strains credulity to think that she and/or her husband did not have a review of the one-page deed with their lawyer or that they did not glance at the reference to the 1988 deed—if they had they would have been aware of two things (1) it certainly did not reference the 2001 map and (2) it referenced the 1988 map which subdivided their property in a way that allocated much more than one-half acre to 36 Highland.   They cannot seriously claim that they were not aware of the 1988 subdivision.

In the odd context of this case it was thus necessary to say or convince themselves that they did not read the deed, if reformation was going to be a viable remedy.

The court from the foregoing concludes that the plaintiffs have not met the heavy burden imposed on parties seeking reformation of a contract.   The prior agreement to sell the subject parcel does not lead to the conclusion that the deed must be reformed to reflect that agreement.   The court concludes that the plaintiffs have not proven that there was an absence of a mutual agreement to sell 36 Highland so as to reflect the description given to it in the 1988 map.

E.

That predicate having been arrived at, it is a somewhat complicated issue to determine the weight to be given to Attorney Beatty's testimony, an expert offered by the defendants, in deciding how this case should be resolved.   In other words if one does not accept Attorney Beatty's testimony that a proper title search would not have revealed the existence of the 2001 map, # 4719, and that would have (1) been actual notice of the 1/2 acre proposition for 36 Highland and (2) proof positive that the defendant's attorney who was responsible for preparing the title search and its accuracy erred, where does that leave us?   Does it require the contract of sale and ensuing deed be voided?   How is it a basis for reformation?

In any event the court does not agree with the plaintiff's characterization of Attorney Beatty's testimony.   He is a very experienced real estate lawyer which the defendant conceded.

Before beginning a discussion of the attorney's testimony it would note that it is not disputed that it is the buyer's responsibility to provide an accurate title search at the closing.

Attorney Beatty stated that in conducting a title examination you must follow a chain of title.   Map # 4719 is not in the chain of title because it was not “referenced in any of the deeds of conveyances out involving this particular piece of property”—referring to 36 Highland.   Merely because a map is filed in the town clerk's office does not mean it is in the chain of title.   Map # 4719, the 2001 map, was not referenced in any of the deeds regarding the Macdonalds' property and therefore was not in the chain of title.

Maps in other words “are not part of the land records unless they're incorporated into a deed which is part of the land records and the chain of title.”   Attorney Beatty referred to Map 4719 as a zoning location survey and it is intended to show compliance with local zoning regulations.   In other words it does not reflect an actual conveyance of property because of its incorporation into a deed so how could it be part of the chain of title?

If one went to the assessor's office map 4719 could be discovered but it appears from the attorney's testimony that you would only go to the assessor's office and look at the card or index that would refer to a map like # 4719 if you do not know who owned the property at a particular time—you find the last transfer and you would start your search that way.

The court asked Attorney Beatty would a person doing a title search, out of an excess of caution go check that location in the clerk's office where a map like # 4719 is kept.   He said “no” because “It wouldn't have an effect on the title or chain of title, no.”

The plaintiffs' characterization of Attorney Beatty's testimony does not change the court's conclusion about whether the deed actually reflected the prior agreement of the parties as to the ambit of the property being sold nor, in any event, could it.   Also given the court's view of his testimony, the promissory estoppel argument by the plaintiffs to establish the inaccuracy of the title search prepared by the defendant's attorney does not have any bearing on the issue before the court.

F.

In opposing reformation, the defendants also raise the argument of laches.   In general “Laches occurs when neglect or omission to assert a right taken in conjunction with the lapse of time and other circumstances causes prejudice to an adverse party so as to serve as a bar to relief in equity.”  Traggis v. Shawmut Bank, 72 Conn.App. 251, 262 (2002).   However, “the mere lapse of time does not constitute laches,” id., quoting from Bozzi v. Bozzi, 177 Conn. 232, 239 (1979).   Under the facts of Traggis the court held the facts presented did not bar reformation of the contract at issue in that case because no prejudice was shown, 72 Conn.App. at page 763.

Assuming the court erred in its conclusion that reformation was not warranted was the failure of the Corriveaus to pursue their claim subject to laches.   Here the Corriveaus testified that they discovered the mistake depriving them of their property in 2004.   They then contacted the lawyer who represented them in the 2001 sale of 36 Highland, explained their position and provided the lawyer with the 1988 and 2001 maps.   However no further action was taken by the Corriveaus until 2009 when suit was filed.

Powell in discussing the reformation of deeds at Section 81A.07(3)(g), page 81A–144 makes the point that because one of the grounds for reformation is mistake—the only ground really advanced here—and since the availability of the remedy is limited by the equitable bona fide purchaser defense, the need for a limited time to bring a reformation of deed action “is not as pressing as in other areas of the law.”   He goes on to say that a plea of “a time limitation from a party who benefits from fraud or mistake and who is not a bona fide purchaser, is not likely to be received with sympathy by the courts.”   In this case if the plaintiff's position were to be accepted a mutual mistake of fact occurred so the plaintiffs cannot be described in such a scenario as a bona fide purchaser.   In any event where mistake has been shown Powell says that “although the courts do recognize theoretical limitations based on the equitable doctrine of laches, it is difficult to raise facts which will cause the doctrine to be applied,” several cases are cited;  Flaspohler v. Hoffman, 652 SW.2d 703 (Mo.Ct. of App., 1986);  Diocese of Bismark Trust v. Ramada, Inc., 553 NW.2d 760 (N. Dak., 1996);  Timms v. Timms, 348 SE.2d 386 (Ct.App., 1986);  Gilmor v. Wright, 850 P.2d 431 (Utah, 1993).

These observations would appear to apply to prevent the Macdonalds from relying on a laches defense to forestall a validly presented claim for reformation.   But it is difficult to see how the mortgagor Dutch Point, which has a mortgage of over fifty thousand dollars on 36 Highland recorded on the land records in January 2009, would not be prejudiced by the five-year delay in bringing this reformation action.   If it had been actively pursued, assuming it were found to have merit, they would have had the option of not writing the mortgage—a reformation action could certainly have affected their expected equity in the property.   Our case law considers prejudice to be a factor in determining whether laches should apply.

Thus if reformation were to be granted here an innocent party would be harmed with no way to have protected itself other than being required to participate in an after the fact suit.   In a reformation action the court sits in equity so the court concludes that even if it were mistaken in its conclusion that reformation, theoretically, should not be granted, for the foregoing reason the court should not because of laches grant the remedy.¹

In any event reformation is not granted.

Thomas J. Corradino

Judge Trial Referee

FOOTNOTES

FN1. The unjust enrichment claim does not appear to be pursued.   In any event the court's decision negates the right to such a remedy.   Also monetary or economic loss evidence has not been presented..  FN1. The unjust enrichment claim does not appear to be pursued.   In any event the court's decision negates the right to such a remedy.   Also monetary or economic loss evidence has not been presented.

Corradino, Thomas J., J.T.R.