Levin v. Bernstein

Wait, J.

This is a bill in equity to reform a mortgage on the ground that there was mutual mistake in that the language used does not express the intent of the parties, who executed it in ignorance of the error. The judge stated that he was not satisfied that the words affecting the meaning of the instrument which it was claimed were used contrary to the intention of the parties, were used either by inadvertence, clerical error or mistake, and found rather that they were inserted advisedly. He dismissed the bill. The plaintiff appealed.

The law is settled that equity will not reform a document on the ground of mutual mistake where it expresses, in lánguage deliberately chosen, the meaning which one of the parties intended it to convey. Barrell v. Britton, 252 Mass. 504, 508 . In such a case there is no mutual mistake. Page v. Higgins, 150 Mass. 27 . New York, New Haven & Hartford Railroad v. Plimpton, 238 Mass. 337, 340 . O’Reilly’s Case, 258 Mass. 205, 208 . Whether in fact the language was so chosen and used is a question of fact.

This court will not overturn the decision of a trial judge in matter of fact unless it is clearly wrong, or is the result of a mistake of law or an abuse of discretion. Thayer v. Atwood, 259 Mass. 523, 527 . The evidence reported fails to show any mistake of fact or law or any indication of abuse. The finding would well be warranted that the seller of the land in question did not intend to give the buyer the right she now desires, and that if the latter failed to apprehend it at the time it was because she failed to take advantage of the ample opportunity given her by the other party to do so.

Decree affirmed with costs.