
    TOWN OF RUTLAND v. EVELYN PIERPOINT ET AL.
    
    
      Equity ; will Correct Mistake in Awarding Land Damages.
    
    E. owned jointly with, the other defendants certain land, of which he was in apparent possession, and which he had authority to manage in all ordinary matters without consulting the others, h ut not to sell. The selectmen of the orator laid a highway across the same, and E. appeared before them as the owner with reference to damages. The selectmen, supposing him to he the sole owner, awarded to him alone full damages. Held, that a court of equity should decree that the mistake of the selectmen he corrected, and said award paid to the several owners in proportion to their respective interests.
    This was a bill in chancery brought by the orator against the defendant Evelyn and his two sisters, Julia Pierpoint and Susan S. Pierpoint. The subject matter of the bill sufficiently appears-in the opinion. The defendant Evelyn made answer. The other two defendants did not appear, and the bill was as to them, taken as confessed. The case was referred to a special master, and was heard at the September Term, 1887, of the 'Rutland. County Court of Chancery. Royce, Chancellor, decreed that the bill be dismissed. Appeal by the orator.
    It appeared from the master’s report that the defendants were joint ownexis of the land over which the highway was laid. As to the authority of the defendant Evelyn with reference to the • management of the land genex;ally, and in connection with this-particular transaction, the report found :
    “ Evelyn Piex-point had the possession and general management of said real estate, and had had for many years. He was-accustomed, and was authorized to represent all the owners in, ordinary matters relating to the property ; but was not authorized to conclude agreements to sell without consulting the others. He had no authority to represent his sisters in highway proceedings, uxxless such authority is covered by the findings above made.
    “It was the intention of Evelyn Pierpoint, in his conference with the selectmen, mentioned hereafter, to secure the allowance of full damages. He gave the selectmen permission to commence wox’k on the land before the matter of damages was set-tied. He had no conversation with his sisters about the business before the making of the award, but did have after. Nothing ■further appeared as to knowledge, objection or approval on the part of the sisters.
    
      “ Under these circumstances the selectmen awarded two hundred dollars. Their award appears in the report as follows: To Evelyn Pierpoint we award the sum of two hundred dollars damages.’ This sum was intended by the selectmen as damage to the whole property, and the failure of the report to award it in accordance with that intention is undoubtedly the result of an error.
    “ After the award was on record, and had come to the knowledge of Evelyn Pierpoint, he had a conversation with some of the selectmen, in which they claimed that the amount given was intended for all, and' said Evelyn stated that if the award was Tor his interest only it was satisfactory, but if for all it was not •satisfactory.”
    
      Lawrence da Meldon, for the orator.
    The selectmen in awarding the entire damages to Evelyn Pierpoint acted under a mistake of fact as to the ownership of the land. Equity will relieve from the consequences of that mistake. Litchfield v. Hutchinson, 117 Mass. 195 ; Spurr v. Benedict, 99 Mass. 464 ; "Willard Eq. Jur. 64-5-70 ; 6 U. S. Dig. 658, s. 357 ; p. 659, s. 382 ; p. 665, s. 514 ; p. 511; p. '96, s. 190; 89, s. 59 ; 656, s. 1280-1-4; Davis v. Gilley, 44 N. H. 448 ; 'Stone v. Atwood, 28 111. 30 ; Pullman v. Personean, 33 111. 375; Williams v. Warren, 21 111. 541; 1 Jac. Eish. Dig. 436 ; Brown v. Lamphere, 35 Yt. 252 ; Sto. Eq. Jur. ss. 138 (c) 138 (k), 140, 142, 143, 145, 153, 155, 156, 162, 164 e, 164 f, 166, 439,1451, 1452, 1455, 1456, 1456 a.
    It is unconscionable to allow a party to take advantage of a ■mistake into which he has unwittingly lead another. 117 Mass. 195 ; 6 U. S. Dig. 659, s. 382.
    
      W. G. Dunton and Edward Dana, for the defendant, Evelyn Pierpoint.
    Proceedings for the condemnation of land are in invitum. "In this case no notice has been given to any one but Evelyn. If herefore the prayer of this bill is granted, the effect will be to condemn the land of these co-defendants without any opportunity tó be heard. Woodhouse v. Burlington, 47 Yt. 300.
    The records of' the town were open to the inspection of the-selectmen, and they could have ascertained the true state of this; title. No.deception was practiced. Equity will not grant relief where the one asking it has acted under, mistake of facts -which he might have learned upon reasonable' inquiry. Yoorhis s: Murphy, 26 N. J. Eq. 434; Haggerty v. McKenna,'N. J. Eq. 48 y-Dillet v. Kemble, 2-5 N. J. Eq. 66; .Graham v. Berry-man, 19 N. J. Eq. 29 ; Penny v. Martin, 4 Johns.- Ch. 566 ? .2 Pom. Eq. Jur. pp. 843, 856; 1 Conn. 134; MicDaniels v. Bank, 29 Yt. 230 ; Burton v. Wylie, 26 Yt. 430 ; Fletcher v. Warren, 18 Yt. 45 ; Warren v. Oonant; 24 Yt. 351; Emersons. Tldall, 13 Yt. 477; Pettis s. Bank, 17 Yt. 435; Dambmann v: Shutting, 75 N. Y. 56.
    
      
      (* Heard, January Term, 1888.)
    
   The opinion of the court was delivered by

Tyler, J.

In this case the selectmen, supposing from Evelyn Pierpoint’s connection with the matter of laying the highway in question that he was the sole owner of the land through which it passed, without examination or inquiry as to the state of the-title, awarded to him- the sum of two hundred dollars, which they considered full compensation for damages. Had they understood that there were other owners of the land in common with said Evelyn, their award would have been no greater, but it would have been to all the owners in proportion to their respective-interests. The town of Rutland brings this bill praying that it may be relieved from the'consequences of the mistake of its selectmen, and that the award of two hundred dollars may. be-decreed to all the defendants according to their and each of their rights thereto.

The first -question that arises is, whether defendant Evelyn was to such an extent the agent of the other two defendants that they were bound by his action. The master finds that he had had the possession and general management of the real estate for many years; that he was accustomed and was authorized to represent all the owners in ordinary matters relative to the property, but was not authorized to conclude agreements t.o sell the land without consulting the others. He further finds fhat it was Evelyn’s intention in his conferences’ with the selectmen to secure the allowance of full damages, and that all his conversations with them were in relation to the entire damage to the land, and not as to the damage to any undivided interest therein. ■

We think that the laying of the highway was an ordinary matter relating to the property. It did not require a deed. It was not a sale. It imposed a public servitude upon the land and nothing was required of defendant Evelyn but the administrative ■duty of seeing that his own rights and those of his co-tenants were protected.

The bill alleges that defendant Evelyn had the entire management of said land and of the claims for damages, and that he appeared and claimed full damages of the selectmen, who made itheir award therefor. Defendant Evelyn makes answer and -denies these allegations and avers that the sum awarded is no more than adequate for his own damages, exclusive of those of his co-tenants. The other two defendants make no answer and -do not appear, therefore it must be taken as confessed by them .that these allegations are true.

The case presented, therefore, is that the selectmen through mistake awarded to one of the tenants in common a sum that was ample for all and that should have been awarded to all according,’to their several • interests., By defendant Evelyn’s connection with the matter, especially by his omission to take ah appeal when informed by the selectmen that their award was for all the owners, he should be precluded from saying that the •award should not be corrected. The other defendants do not ■contend that ’ it should not be corrected so as to carry out the real intention of the selectmen. We think the orator clearly •entitled to the relief prayed for.

The decree of the chancellor dismissing the bill is reversed -and cause remanded to the Court of' Chancery with mandate that a decree be entered for the orator according to the prayer of the bill.  