Deeds. Error is not ambiguity. Elements of reformation not proved.

Brault v. Welch, 2014 VT 44 (16-May-2014)

SKOGLUND, J. Plaintiffs Brault appeal from the trial court’s order granting judgment to defendant in this dispute over a right-of-way. The Braults argue that the court should have found an ambiguity in the description of the right-of-way because it was a simple scrivener’s error that misstated which side of the wall the easement is on. We affirm.

The language of the deed is not ambiguous. The Braults would read the word “southerly” to mean “northerly.” This does not comport with the deed’s plain language. The fact that the grantor may not have owned the land southerly of the block wall does not render the language at issue ambiguous. Because this language is unambiguous, it must be enforced as written.

Even if the circumstances surrounding the grant of the easement created some initial ambiguity as to the language employed, the “construction” offered by the Braults requires the Court to rewrite, rather than merely construe, the words of the deed. Specifically, it demands that the Court insert the word “northerly” in place of the word “southerly.” A result so at odds with the actual language of a deed is rightly accomplished through the remedy of reformation.

Deed reformation is appropriate where, through mistake, language does “not represent the actual conveyance intended by the parties” The Braults cannot meet the necessary standard of proof because they failed to introduce evidence regarding the circumstances of the drafting of the deed. There was no evidence to explain the sellers’ understanding of boundary lines. There was no evidence to show what circumstances led to the use of the word “southerly thereof” in the deed, and no evidence of a prior agreement between the parties concerning the easement. Therefore, there was no basis on which the court could reform the deed.

How cited

Real Property. Law of Cadavers. Ancient deed “excepted” a cemetery plot in fee simple, and did not merely “reserve” an easement. New owner had no right to bury parents in old cemetary.

 In re Guite, 2011 VT 58 (Dooley, J.)  

This case concerns the use of a hilltop cemetery on a farm in Hartland, Vermont.  The petitioner claims that the cemetery plot is owned by heirs of the Aldrich family, who settled the property as a farm in approximately 1775 and remained there until selling the farm in 1853.  Respondent purchased the farm property in 1950 and buried the cremated remains of his parents in the hilltop cemetery.  Respondent claims that the Aldrich family reserved only an easement in the cemetery plot, so that he could use it to bury his parents and the remains cannot be moved.  The trial court adopted respondent’s theory and denied the petition.  We conclude that petitioner’s theory is correct and reverse.

In Harding, we ruled that where we could not ascertain the true intent of the parties to the original deed, and in the absence of a “clearer expression of intent,” we would rely upon the common law of family gravesites, which creates an easement.  2005 VT 24, ¶ 18.  The deed in this case contains the necessary clearer expression of intent.  

The 1853 deed in this case has excepted from the conveyance a fee interest in a particular plot of land, rather than a burial easement as recognized at common law.  The plot is excepted “out of the above described premises.”  The terms “excepting” and “exception” are generally used to withhold from a grant or conveyance something that would otherwise pass in the grant.   This technical meaning of the words “excepting” and “exception” dates back to the era of the 1853 deed. see P. Jackson, The Law of Cadavers 219 (1936) (distinguishing “exception” from “reservation” and noting that “the scrivener’s choice of terms is given appropriate but not conclusive weight”). Importantly, the grantor retained an ascertainable tract of land, with the burial plot description being used to locate where the tract is to be found.

Accordingly, we find that the 1853 deed excepted from its grant the 41’ by 27’ burial plot, and the plot is owned in fee simple by the heirs of the Aldrich family.  Thus, it was never owned by the King family, and they had no right to bury the cremated remains in it.