Collins v. Stanbon

Braley, J.

We assume from the findings of the judge that the plaintiff, relying thereon, was induced to purchase the land described in the bill through the representations of the defendant’s agent as to the location of the boundary line in the rear of the property. The agent was honestly mistaken, and upon comparison of the area conveyed by the description in the plaintiff’s deed, with the area as it would have been if the fine pointed out to the plaintiff while he and the agent were on the premises had been the true boundary fine, it appears that a strip or parcel found to be approximately fifty or sixty feet long and seven feet in width is not included. But, even if the plaintiff has entered upon and improved this strip as a portion of the land, believing that he owned it, there is no contention that the written agreement entered into after the acts of the defendant’s agent, as well as the deed which followed the agreement, did not accurately describe the property as lot V, on a plan of the defendant’s land duly recorded. The bill alleges, that the description in these instruments is the result of a mutual mistake which he prays may be so corrected as to include the strip, or in the alternative for damages sustained by reason of the omission. It is plain that specific performance cannot be decreed, for there was no agreement in writing covering the strip, and in the absence of fraud, which is neither alleged nor shown by the *342 evidence, there is no enforceable claim for damages. Glass v. Hulbert, 102 Mass. 24 . Tracy v. Blinn, 236 Mass. 585 . Curran v. Magee, 244 Mass. 1, 5 . The decree awarding damages is therefore reversed, and a decree is to be entered dismissing the bill.

Ordered accordingly.