Opinion
C.A. No. 2014-S
Submitted: October 18, 2002
Decided: December 12, 2002
David J. Weidman, Esquire, HUDSON, JONES, JAYWORK FISHER, Georgetown, Delaware, Attorney for Petitioner.
Robert V. Witsil, Jr., Esquire, Georgetown, Delaware, Attorney for Respondents.
MEMORANDUM OPINION
I.
Adjoining property owners entered into a written agreement purporting to resolve what the agreement refers to as "doubt and uncertainty about the true and correct location of the common boundary" between their lands. The effect of the agreement was to move their common boundary from the bed of an old dirt road (that runs between the properties and provides access to them both) 50 feet south into a field lying in the southern property. Because the common boundary extends nearly 1,000 feet, 1.06 acre of land was cut off from the southern property and made a part of the property lying to the north. The northern landowner recorded the agreement. No consideration was paid to the southern landowner.The southern landowner promptly sued to rescind or cancel the boundary line agreement, alleging, among other things, that it was the product of mistake since there was no legitimate dispute about the location of the boundary line between the properties. Cancellation is an available remedy because there is no intervening third party interest acquired in reliance on the recordation of the agreement. In the circumstances, cancellation of the instrument would affect only the parties to the agreement.
The parties have cross-moved for summary judgment. The court has reviewed the record and briefs and considered the arguments of counsel and concludes that the plaintiff is entitled to an order declaring the boundary line agreement null and void and canceling the instrument of record. The agreement was obviously the product of mistake and is grossly unfair in its operation. In equity and good conscience, it should be undone.
II.
The petitioner is the Charles F. Sauers Family Trust, the owner of a parcel of land located in or near Piney Grove, Delaware acquired by it on February 25, 1994. The deed conveying title to the Trust describes the property, in pertinent part, as follows:
ALL that certain tract or piece and parcel of land situate ... on the west side of the Public Road leading from Georgetown, Delaware to Piney Grove and on the South side of a new Public road leading to Stockley Station . . . containing Twelve (12) acres of land, more or less.
The history of the conveyance of this land as a separate parcel dates back to 1905, when George F. Rogers transferred it to Nathaniel D. Rogers. George F. Rogers acquired the land in 1872 as a part of a larger conveyance from Curtis Rogers and Eleanor Rogers. The description in the 1994 deed is in all material respects the same as that found in the 1905 deed, although the 1905 deed further describes the parcel being conveyed as being "all the lands owned by the grantors on the south side of the `New Public' road leading to Stockley Station."
The respondents are Albert J. Bierman, J. G. Townsend, Jr. Co., and Barbara Pivec. Bierman is the owner of a parcel of land that adjoins the Trust's land to the north. Pivec is his employee or agent who was responsible for procuring the Trust's consent to the agreement. The corporate respondent is unidentified in the record. Bierman purchased his property by deed dated December 3, 1998. He did not have a survey performed before the closing. The deed he received describes the lands, in pertinent part, as follows:
ALL THAT certain tract, piece and parcel of land lying ... on the North corner of the County Roads leading from Georgetown to Piney Grove where County Roads cross leading to Stockley Station and containing Eighteen (18) acres of land, be the same more or less with improvements thereon.
The Bierman parcel was originally part of the 1872 transfer to George F. Rogers. The first transfer of that land as a separate parcel was made in 1907, when George F. Rogers sold the land to Charles T. Conaway. That 1907 deed (as well as the 1994 deed) recites that the land transferred adjoins the lands of Nathaniel Rogers — presumably those transferred by the 1905 deed. Moreover, the 1907 deed further describes the lands thus conveyed as "being all of the balance of the lands of George F. Rogers . . . (not heretofore conveyed) that were conveyed" to George F. Rogers by the 1872 deed.
The subject of the disputed agreement is the location of the northerly line of the Trust's land and the southerly line of Bierman's land. Both properties lie to the west of County Road 431 leading from Georgetown to Piney Grove. On the Trust's deed, the lands described are said to lie "on the South side of the new Public road leading to Stockley Station." On Bierman's deed, the lands are merely said to lie "on the North corner of the County Roads leading from Georgetown to Piney Grove where the County Roads cross leading to Stockley Station." Obviously, the common element on both deeds is the reference to a road "leading to Stockley Station."
The following schematic drawing depicts the situation of the properties at issue.
Heading east from County Road 431, County Road 322 does lead in the direction of Stockley. Today, and in recent memory, however, that road does not cross County Road 431. All that exists to the west of County Road 431 is a field entrance leading to an old dirt road that, for as long as anyone can remember, has been used to provide farming access to both parcels of land. This road runs roughly parallel to the present center line of County Road 332, although slightly to the south of it. At the time of the matters in dispute, there also was an old cedar tree some distance onto the lands in question along the dirt road.
The 1905 deed suggests that there was once a public road that defined the northern boundary of the Trust's land. Similarly, the 1907 deed refers to a crossroad (i.e., "where County Roads cross leading to Stockley Station"). The summary judgment record, however, does not contain any other proof that such a road existed or, if it did, where it was located. For example, no party has found any old maps or surveys showing the existence of such a road. Nor has any party found a witness with a memory long enough to recall what the intersection in question looked like during the early years of the last century. Nevertheless, it is clear from the record that, until the disputed agreement was signed, everyone concerned thought that the old dirt road marked the boundary between the two properties.
The court has also read and takes note of the deposition of David Allan Baker, submitted in support of the Trust's motion for summary judgment. Baker is a resident of Georgetown, Delaware but was born and raised on County Road 431 in the vicinity of the property in question. He testified that the dirt farm road and the old cedar tree had always, to his knowledge, been treated as marking the boundary between the two properties.
III.
In mid-December 1998, after he bought the northern parcel, Bierman had it surveyed. The field work for that survey was performed in January 1999, and revealed that the parcel was only approximately 16 acres, rather than the 18 acres described in the deed. The surveyor, R. B. Kemp, III, a director of Adams-Kemp Associates, Inc., also observed the ambiguity caused by the 1905 deed's reference to the "New Public Road leading to Stockley Station" and formed a professional judgment that "the deed descriptions in both the Bierman and Sauers Trust chains of title are vague and uncertain." Notwithstanding this judgment, Mr. Kemp recognized that the dirt road and the old cedar tree appeared to mark the boundary between the two properties. Kemp also ascertained that the Trust's property, measured using the old dirt road as the boundary, was closer in area to 14 acres than to the 12 acres called for on its deed.When Bierman learned this information, he directed Pivec to approach the Trust to obtain its consent to adjust the boundary line between the two parcels to reflect more accurately the amount of acreage called for in the deed. As Pivec testified: "The boundary line agreement only came about because we were trying to ... make the amount of property that Mr. Bierman had and the amount of property adjacent to it agreeable with those deeds." She also testified that the "southern boundary line was set to give Mr. Bierman 17 acres of property" and for no other reason.
Pivec Dep. at 32.
Id. at 39.
Pursuant to these instructions, Pivec asked Kemp to prepare the disputed boundary line agreement. This one page document consists of (i) an inset map showing the Bierman parcel with a new southern boundary, called the Agreement Line, identified by metes and bounds, and (ii) a short agreement that is signed and witnessed. The operative paragraph of the agreement reads as follows:
The doubt and uncertainty as to the true and correct location of the common boundary lines designated on this plot by the letters "A", "B" and "C" causes a hardship between the parties hereto. Whereas both parties desire to fix the location of the common boundary between their properties, prevent further uncertainty and improve their properties to the common boundary in any manner they so desire, they therefore agree that the common boundary between their properties is as shown on this plot prepared by Adams-Kemp Associates, Inc.
The agreement nowhere refers to the discrepancies of acreage for the two properties. Nor does it show the location of the dirt road or the old cedar tree.
Pivec went to see Joan Lee Trent, the Trustee. Although Pivec showed Trent a copy of the Boundary Line Agreement, she did not leave it with her. Pivec's deposition testimony is somewhat contradictory about her meeting with Trent. On the one hand, she testified she told Trent that the southern boundary was being moved to give Bierman the property he thought he purchased. On the other hand, she testified that she never told Trent that she would be losing part of her property if she signed the agreement. Trent testified that, as a result of this conversation, she was left with the impression that there was considerable uncertainty about the location of the boundary between the two properties, that the agreement "was going to be the solution, and everybody was going to get something." Following this meeting, Trent contacted both an attorney and a real estate agent to seek advice about boundary line agreements.
J. Trent Dep. at 29.
On February 6, 1999, a few days after the first meeting, Trent met Pivec at the Bierman property to sign the agreement. While there, she and Pivec's husband took a walk outside, along the dirt road. There were no stakes, flags or markers up on the land to show where the new boundary would be. Trent did not ask Mr. Pivec where the proposed boundary would be, and he did not point out the new line. He also did not tell her that the agreement would result in a loss of ground to the Trust. Trent signed the agreement at this time. It was filed of record one week later.
Soon after the agreement was signed, Trent agreed to step down as Trustee of the Trust and was replaced by her son, Barry Trent. He then contacted Michael D. Swain of AKS Associates, Inc., land surveyors. By letter dated March 31, 1999, Swain informed Barry Trent that "the agreement has taken a strip of land over 50 foot wide from the road to the back of the property, which you and the adjoiner's predecessor had considered the true line for as long as anyone can remember." Swain later performed a survey documenting the loss of land.
IV.
Pursuant to Court of Chancery Rule 56, a motion for summary judgment should be granted where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the facts must be viewed in the light most favorable to the non-moving party and the movant has the burden of demonstrating that there is no material question of fact. Although the parties have crossed-moved for summary judgment, that fact "does not act per se as a concession that there is an absence of a factual issue." Having reviewed the record, however, the court concludes that there are no material facts in dispute and that summary judgment should be entered in favor of the Trust.
See, e.g., Williams v. Geier, 671 A.2d 1368, 1375 (Del. 1996).
Tanzer v. International General Industries, Inc., 402 A.2d 382, 385 (Del.Ch. 1979) (citing Judah v. Delaware Trust Co., 378 A.2d 624, 632 (Del. 1977)).
United Vanguard Fund, Inc. v. Takecare, Inc., 693 A.2d 1076, 1079 (Del. 1997).
While the record at this stage of the proceeding does not support a conclusion that Pivec or any other party intentionally deceived the Trustee, it is clear that, at the time she signed the Boundary Line Agreement, the Trustee was materially mistaken about the nature of the dispute and the effect of the proposed agreement. The Trustee's mistake goes to the very purpose of the agreement and is sufficient reason to require that the agreement be rescinded and cancelled of record. The "equitable remedy of rescission results in abrogation or `unmaking' of an agreement, and attempts to return the parties to the status quo."
Norton v. Poplos, 442 A.2d 1 (Del. 1982).
The Boundary Line Agreement was not intended to resolve a dispute between Bierman and the Trust — not even the actual lack of clarity about the exact location of the common boundary between their lands. Instead, Bierman pursued that agreement as a means to remedy his discovery that he had paid for 18 acres of land but gotten only 16 acres. Rather than sue his seller, against whom he might have had a claim, Bierman decided to see if the Trust would convey an acre of land to him under the guise of a "boundary line" dispute. He and Pivec did this notwithstanding the fact that Bierman had no possible legal claim against the Trust, and with full knowledge that the dirt road and the old cedar tree marked the boundary between Bierman's land and the Trust's land.
It is for these reasons that the Boundary Line Agreement contains within its four corners a material misrepresentation about its very nature and purpose. This is seen both in its reference to the "doubt and uncertainty as to the true and correct location of the common boundary" and its omission of the location of the old dirt road and the cedar tree on the plat showing the new line. Moreover, this basic misrepresentation about the nature and purpose of the agreement was not dispelled when Trent visited the property on February 6, 1999. On the contrary, there were no flags or markers laid out to show her where the proposed new line was from which she might have been able to understand just how much land she was being asked to give up. It was obviously only because of her mistaken understanding of the agreement that Trent could have thought, as she did, that the Trust was benefited by the agreement. Had she understood that the Trust was giving away an acre of ground to make Bierman whole in his dealings with his seller, it is not reasonable to imagine Trent would have agreed to do so. Certainly she could not have done so consistent with her duties as Trustee.
The court recognizes that the law ordinarily attaches a strong presumption of regularity to formally executed and acknowledged written agreements, especially those that are intended to be filed of record. Moreover, the court would do so here if there were a basis upon which to conclude that the agreement in question was both the result of a good faith dispute about the actual boundary between the two properties and designated a rational boundary to resolve that dispute. Here the record shows that this agreement does not meet either element of this test. First, while the deed descriptions are vague, there was not a good faith dispute about the location of the common boundary. Second, even if there were some good faith dispute, there is no rational justification for moving the boundary line 50 feet south in order to resolve such a "dispute."
See, e.g. Hob Tea Room v. Miller, 89 A.2d 851 (Del. 1952).
Street v. McIlvaine, 1996 WL 361507, C.A. No. 1350-S (Del.Ch. June 21, 1996).
Finally, the court notes that the circumstances of this case do not involve the interests of any innocent third parties who may have relied upon the recordation of the agreement to their detriment. For this reason, the court concludes that the appropriate remedy is to enter an order rescinding the agreement and canceling it of record. To that end, the court directs the plaintiff to submit a form of final order no later than January 10, 2003. In that regard, the court urges the parties to agree upon a metes and bound description of the common boundary and to incorporate such description in a document to be recorded with reference to both of their lands.