John W. DUGAN and Marie S. Dugan, Plaintiffs,
Anthony BOSCO, Mildred T. Bosco, Joseph Bosco and Mary A. Bosco, Defendants.
Action involving purchase of property, a portion of which was located on adjoining lot. The Chancery Court, New Castle County, Seitz, C., held that where vendors sold property knowing but not disclosing that portion of driveway was on adjoining lot and both vendors and vendees labored under mistaken belief that septic system was on property conveyed, there was a material misrepresentation by vendors as to driveway and a mutual mistake of fact as to septic tank both of which were material and vendees were entitled to rescission even though they had converted house into apartments and could not restore the status quo.
Robert C. Barab and Michael A. Poppiti, Wilmington, for plaintiffs.
C. Edward Duffy and Stephen E. Hamilton, Jr., Wilmington, for defendants Anthony Bosco, Joseph Bosco and Mary A. Bosco.
Aubrey B. Lank, Wilmington, for defendant Mildred T. Bosco.
This tragicomedy can best be understood by a chronological statement of the facts. Originally, the defendants, Joseph Bosco and his wife, owned a single tract on River Road, having a 100 foot frontage and a depth of 305.72 feet. Joseph desired to [34 Del.Ch. 600] make a gift to his son of a lot on which his son, Anthony, might build a home for himself and his wife. He had the tract divided into two lots of equal size with 50 foot frontage. On August 18, 1948, Joseph and his wife executed a deed to their son, Anthony Bosco, also a defendant, conveying one of the lots to him. He retained the other lot with the then intention of later giving it to his daughter so that she might build a home thereon. By mistake, which all parties concede, the deed did not convey the lot which Joseph intended to convey and which Anthony understood he was receiving. Rather, the deed conveyed the lot which Joseph was retaining for his daughter.
Believing he had attained title to the ‘ right’ lot, Anthony Bosco and his wife proceeded to build a house thereon. But of even greater importance, it turns out that a portion of their driveway and of the septic system were located on the vacant lot. This is the storm center of the controversy.
The house was built with the front approximately parallel to River Road. However, the sides of the house are not parallel with the side lines of the lot because the lot lines do not run at right angles to River Road. Thus, the left front and right rear corners of the house (looking from River Road) are, in varying degrees, close to the side lines of the lot. In order to build, Anthony and his wife obtained a construction mortgage loan on which Joseph Bosco signed a collateral bond for $10,000.
Soon after they finished building, Anthony and his wife sold the property to plaintiffs and received the full purchase price. Plaintiffs subsequently discovered the mistake and the encroachments and this lawsuit followed.
Plaintiffs have not yet moved into the house. However, they converted it into apartments before discovering the matters now before the Court. They plan to occupy the second floor apartment for themselves.
Defendant, Joseph Bosco, recognizes that the conveyance of the still vacant lot was a result of a mutual mistake of fact and he is willing to convey the lot on which the house was built. However, [34 Del.Ch. 601] he claims that he is entitled to receive, in exchange, a deed to the entire vacant lot including the portion thereof on which a part of the driveway and septic system are located.
Plaintiffs contend that they are entitled to have conveyed to them the lot on which their property is located and are entitled to retain the portion of the so-called vacant lot on which the driveway and septic system are located. If such is not the case, then they seek a rescission of the transaction.
I believe that all parties agree that I should decide the merits of the controversy as though Anthony, at the time of the sale to plaintiffs, actually held record title to the lot on which the house was located. To the extent that such an assumption will not affect the ...