The Hayes Family Partnership v. Smart, No. S0520-03 CnC (Norton, J., May
24, 2005)

[The text of this Vermont trial court opinion is unofficial. It has been
reformatted from the original. The accuracy of the text and the
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STATE OF VERMONT                                     SUPERIOR COURT
Chittenden County, ss.:                          Docket No.S0520-03 CnC



THE HAYES FAMILY PARTNERSHIP

v.

WILLOW P. SMART




                                 ENTRY

       Plaintiff Hayes Family Partnership filed a three-count complaint
against defendant Willow Smart seeking reformation of a deed that had
conveyed land to Ms. Smart from Hayes’s predecessor in interest and for
contribution from Ms. Smart for taxes paid on the property. In an previous
order, Counts I & II of Hayes’s complaint — the counts seeking
reformation of the deed or compensation for the conveyed land — were
dismissed because the statute of limitations had run on the claims. Hayes
Family P’ship v. Smart, No. S0520-03 CnC (Katz, J., Apr. 1, 2004). Ms.
Smart has since amended her answer to make a counterclaim for a
declaratory judgment as to her ownership of the entire property in fee
simple. Ms. Smart
now moves for summary judgment of that counterclaim. For the reasons
stated below, Ms. Smart’s motion for summary judgment is granted.

        Summary judgment is granted “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any . . . show that there is no genuine issue as to any material
fact and that any party is entitled to judgment as a matter of law.” V.R.C.P.
56(c)(3). In determining whether a genuine issue of fact exists, the
nonmoving party receives the benefit of all reasonable doubts and
inferences. Robertson v. Mylan Labs., Inc., 

, ¶ 15. Allegations
to the contrary must be supported by specific facts sufficient to create a
genuine issue of material fact. 

following facts are undisputed.

        On or about January 29, 1991, Willow Smart entered into a Purchase
and Sale Agreement with Mildred Hayes. On or about May 2, 1991, Ms.
Smart and Ms. Hayes entered into an Addendum to the Purchase
Agreement. The Addendum, section 1, stated that Ms. Hayes “shall convey
all the land she owns on the southerly side of Hardscrabble Road to
[Defendant].” The Addendum, section 4, further provided that Ms. Smart
“agrees to pay $1,010 per acre for any acreage to which Seller can quiet
title up to a maximum of 396 acres.” At the time Ms. Smart and Ms. Hayes
entered into the Purchase Agreement, Ms. Hayes was in a dispute with
adjacent landowners regarding the exact amount of land she owned on the
southerly side of Hardscrabble Road.

       On or about June 21, 1991, the administrator for the Estate of
Mildred Hayes executed a Vermont Administrator’s Deed transferring to
Ms. Smart the land that was the subject of the Purchase Agreement and
Addendum. The Administrator’s Deed was placed in escrow pending
resolution of the land dispute. After resolution of the land dispute, the
Administrator’s Deed was delivered to Ms. Smart and later recorded in the
Town of Milton land records. The Administrator’s Deed described the
conveyed land as “all the remaining land and premises situated southerly of
Hardscrabble Road in the Town of Milton. Said parcel is said to contain
363 acres, more or less. The Grantor gives full warranty as to 274 acres
and conveys the remaining acreage by quitclaim only.”

        At the time that the deed was conveyed to Ms. Smart, the parties to
the transaction were under the mistaken belief that the land consisted of no
more than 396 acres. The actual parcel is approximately 478 acres. The
size of the parcel was determined when the Hayes Estate reached an
agreement with its neighbor concerning the land dispute. This agreement
was made in 1996.

       The present case was commenced by Hayes on April 24, 2003.
Claims by Hayes for deed reformation or restitution for value given were
dismissed due to the expiration of the statute of limitations. Hayes Family
P’ship, No. S0520-03 CnC.

                              DISCUSSION




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        Ms. Smart’s counterclaim seeks a decree from the court declaring
that she is the owner of all 478 acres of land south of Hardscrabble Road
that was owned by the Hayes Estate at the time of conveyance. The claim
is, in effect, a quiet title action to remove any cloud on Ms. Smart’s title
based on a claim of ownership through Mildred Hayes. The undisputed
facts demonstrate that a valid deed conveyed all land south of Hardscrabble
Road then owned by the Estate of Mildred Hayes, to Ms. Smart. Though
plaintiff has not argued that the deed, on its face, conveyed anything less
than all land south of Hardscrabble Road, a brief look is necessary to
determine the basis of Ms. Smart claim of legal title.

        The deed conveys “all the remaining land and premises situated
southerly of Hardscrabble Road . . . said to contain 363 acres, more or
less.” The only possible issue is whether the controlling language is “all
the remaining land” or “363 acres.” While it has been noted that
“[q]uantity is regarded as the least reliable of all descriptive particulars in a
conveyance,” Parrow v. Poroulx, 

, (1940), courts may
sometimes need to rely upon quantity in the absence of other identifiers.
See Downer v. Gourlay, 

, 546 (1975) (finding that a description
of acreage “more or less” becomes significant when boundaries are
uncertain). When construing a deed, however, the overriding consideration
is the intent of the parties. Mann v. Levin, 

, ¶ 19. In this case,
the grantor deeded “274 acres” by warranty and the rest of her land south of
Hardscrabble Road by quitclaim. The plain intent was to transfer whatever
interest the Estate of Mildred Hayes held in the land south of Hardscrabble
Road to Ms. Smart. Any intent not to transfer some of this land is not
evinced by the language of the deed.

       Where a deed is not ambiguous, the proper interpretation is a matter
of law. Kipp v. Chips Estate, 

, 107 (1999). The deed from the




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Estate of Mildred Hayes to Ms. Smart conveyed all of the Estate’s interest
in land south of Hardscrabble Road, this interest being ownership of 478.68
in fee simple. By making this determination, the court is not ruling on the
validity of any other potential claims that third parties might have against
this property.

     Accordingly, defendant Willow Smart’s motion for summary
judgment is granted.

      Dated at Burlington, Vermont this ___ day of May, 2005.



                                           __________________________




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