2013-0743, Raymond Choquette & a. v. Jason Roy; Raymond Choquette & a. v. Thomas Robichaud & a.; Raymond Choquette & a. v. Philippe E. Roy & a.

Robichaud, and Philippe E. Roy. John L. Riff, IV, of Lancaster, by brief, for Jason Roy, Thomas and Kelly

brief), for Raymond and Pamela Choquette. Cooper Cargill Chant, P.A., of North Conway (Christopher T. Meier on the

No. 2013 - 743 Coos

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh. us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E - mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concor d, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

both Sugar Shack R.O.W. and Roy Boulevard. The petitioners have objected to the property. P.E. Roy has previously performed m aintenance and repairs on access the northeastern corner of the 103 - acre parcel since he acquired title to R.O.W. P.E. Roy’s testimony suggests that he has used Sugar Shack R.O.W. to deed to P.E. Roy does not e xpressly grant him a n easement over Sugar Shack Roy Boulevard is to travel from Hall Stream Road over Sugar Shack R.O.W., the northeastern corner of the 103 - acre parcel. Although the only way to access Sugar Shack R.O.W. connects to Hall Stream Road and terminates at the

nonetheless, eventually physically widened to fifty feet. to provide access to permit future development of the parcel; it was, driveway for a future residence on the 103 - acre parcel, and was never intended by petitioner Raymon d Choquette. Roy Boulevard was intended to be a connects the 103 - acre parcel to “Sugar Shack R.O.W.,” which is a road owned constructed and now is referred to as “Roy Boulevard.” Roy Boulevard be “apportioned equally between the users.” The twenty - foot right - of - way was specified that when they were no longer its sole users, the mainten ance w as to as long as they were the “sole users of said right - of - way.” The deed further construction costs of the twenty - foot right - of - way and also for its maintenance, The deed stated that P.E. Roy and his wife were responsible for the

directly to Hall Stream Road, but it has not been constructed. way. The fifty - foot right of way would have connected the 103 - acre parcel land: a fifty - foot right - of - way to Hall Stream Road and a twenty - foot right - of wife. The deed for this parcel contained two easements over the petitioners’ In 1999, the petitioners sold a 103 - acre tract to P.E. Roy and his late

contain uniform covenants. conveyed were subject to restrictive covenants; the deeds, however, did not buyers on a lot - by - lot basis. Between 1988 and p. 2 2002, many of the parcels selling portions of this 400 - acre parcel, some of which they conveyed to various Stream Road in Pittsburg. By 1988, the petitioners had begun subdividing and 1986, the petitioners purchased approximately 400 acres of land off Hall The trial court found, or the record supports, the following facts. In

I. Bac kground

part, reverse in part, and remand. Superior Court (Vaughan, J.), and the respondents cross - appeal. We affirm in currently owned by the respondents. The petitioners appeal an order of the and access to certain pa rcels of land originally owned by the petitioners and (the respondents). These consolidated actions relate to the transfer of, use of, trustee of the Roy Family Trust, Jason Roy, and Thomas and Kelly Robichaud separate petitions against Philippe E. Roy (P.E. Roy), individually and as CONBOY, J. Raymond and Pamela Choquette (the petitioners), filed p. 3 3

respondents’ counterclaims for breach of title and bad faith and, consequently, right to maintain Roy Boulevard. Finally, the trial court found no basis for the the costs and responsibilities,” and that the petitioners have no independent right - of - way that the adjacent landowners may agree to maintain b y sharing with the road.” The trial court also ruled that Roy Boulevard “is a common to his 10 p. 3 3 - acre parcel but that he has “no right to maintain... or interfere P.E. Roy has the right to travel over Sugar S hack R.O.W. for ingress and egress request for declaratory relief against P.E. Roy, the trial court concluded that reform the Robichauds’ and Jason Roy’s deeds. With respect to the petitioners’ Following a bench trial, t he trial court denied the petitioners’ requests to

answers and counterclaims, and the trial court consolidated the actions. the deeds held by Jason Roy and the Robichauds. The respondents each filed f rom maintaining Roy Boulevard. They also filed separate petitions to reform P.E. Roy to prohibit him from using and maintaining Sugar Shack R.O.W. and Subsequently, the petitioners filed a petition for declaratory relief against

Robichauds and Jason Roy objected to the proposed amendments. for Lot p. 3 33 - 12 and Lot 33 - 13 to in clude the application covenants. The notified the Robichauds and Jason Roy that they wanted to amend the deeds identical to that in his predecessor’s 2004 deed. In 2011, the petitioners 2010, Jason Roy acquired Lot 33 - 13 by a warranty deed with a description description identical to that contained in their predecessor’s 2004 deed. In The Robichauds purchased Lot 33 - 12 in 2007 by a warranty deed with a

Deeds. application covenants had not been recorded in the Coos County Registry of identified in the Subdivision Application had been conveyed, and the application covenants. At the time that these lots were conveyed, no other lots covenants that were “substantively and materially different” from the the George M. Ro y Trust, by a warranty deed that also included restrictive covenants. Next, the petitioners conveyed Lot p. 3 33 - 13 to P.E. Roy, as trustee of that were “substantively and materially different” from the application predecessor - in - title by a warranty deed that contained restrictive covenants Subdivision Application. First, they sold Lot 33 - 12 to the R obichauds’ In 2004, the petitioners conveyed two parcels identified in the

but it did not recite or refer to any restrictive covenants. Certificate o f Registration was recorded in the Coos County Registry of Deeds, covenants (application covenants) for the future lots. In May 2002, a General, which proposed a subdivision of their property with six restrictive Subdivision” (Subdivision Application) with the New Hampshire Attorney In 2002, the petitioners filed an “Applicatio n for Registration of a

Roy’s use of the roads. P.E. Roy’s maintenance of both roads, and, at times, have interfered with P.E. p. 4 4

add[ed] such a right where it is not included in the deed.” r ight of access from language in the [purchase and sale agreement], and argument that the trial court ignored the merger doctrine and “pull[ed] the extinguished.” Consequently, we are not persuaded by the petitioners’ and Sale agreement merged into the deed of conveyance and was law on merger, stating: “As the r esult of the doctrine of Merger, the purchase Roy “‘deeded access over [the] existing road[],’” and then correctly recited the court recognized that P.E. Roy’s deed did not include language granting P.E. that P.E. Roy w as granted a right to use Sugar Shack R.O.W. Rather, the trial upon the language in the purchase and sale agreement to reach its decision review of the order in this case, we cannot conclude that the trial court relied review de novo. State v. Kay, 162 N.H. 237, 2 p. 4 42 (2011). Based upon our The interpretation of a trial court order is a question of la w, which we

Shack R.O.W. is the “existing road” referred to in the agreement. existing road owned by Raymond Choquette”; th e trial court found that Sugar agreement states that the “Seller agrees to give buyers deeded access over purchase and sale agreement for the 103 - acre parcel. The purchase and sale from using a portion of Sugar Shack R.O.W., “examined” both the deed and the The trial court, in evaluating the petitioners’ request to prohibit P.E. Roy

as full performance of the contract.” Id. at 319 (footnotes omitted). contract and where the purchaser protests against accepting the deed tendered provisions in the contract, where the deed varies from that stipulated for in the applies where the deed contains provisions which are inc onsistent with Purchaser § 2 p. 4 41, at 318 (2006). “The rule that a contract is merged in a deed extinguished and merged into the deed. See 77 Am. Jur. 2d Vendor and agreements between the par ties that were included in a contract for sale are Hixon, 117 N.H. 35, 38 (1977). Accordingly, pursuant to this doctrine, Co mpany, 47 N.H. 235, 2 53 (1866) (quotation omitted); see also Russell v. the parties, and the extent and manner of it, were reduced to writing.” Wells v. instrument, the conclusive presumption being that the whole engagement o f the construction of the deed is conc erned, to have been merged in that Under th e merger doctrine, “prior negotiations must be taken, so far as

upon language in the purchase and sale agreement to authorize such a right. R.O.W. and that the trial court “ignore[d] the doctrine of merger” by relying deed to the 103 - acre parcel does not include a right of access over Sugar Shack granting P.E. Roy an easement over Sugar Shack R.O.W. They assert that the We first address the petitioners’ argument that the trial court erred by

R.O.W. I I. Trial Court’s Ruling Regarding P.E. Roy’s Easement over Sugar Shack

followed. denied their requested recovery of attorney’s fees and costs. This appeal p. 5 5

Blaisdell, 132 N.H. at 716. “reasonably necessary for the fair en joyment of the [103 - acre parcel].” easement over Sugar Shack R.O.W. was “permanent and obvious” and reasonable person would have concluded that, at the time of conveyance, the supported by the record, and such findings are sufficient to establish that a not credible. Accordingly, we conclude that the trial court’s findings are this issue and found that Raymond Choquette’s testimony to the contrary was 103 - acre parcel. The trial court specifically credited P.E. Roy’s testimony on suggests that he has used Sugar Shack R.O.W. since h e acquired title to the repair culverts on his property. The trial court found that P.E. Roy’s testimony Sugar Shack R.O.W. and that he needs the access to reach his house and to that he would not have bough t the property without the right to travel over directly to Hall Stream Road had not been built. In addition, P.E. Roy testified found that the separate p. 5 50 - foot right - of - way to connect the 103 - acre parcel parcel, is over Sugar Shack R.O.W. to Hall Stream Road. The trial court also and that the only access to Roy Boulevard, and therefore to the 103 - acre “the only road in existence for th[e] subdivision was ‘Sugar Shack [R.O.W.],’” granted P.E. Roy’s requested finding of fact that, at the time of conveyance, findings relating to the easement’s necessity. For example, the trial court requested factual findings to support this conclusion, including requested the northeast corner of the 103 - acre parcel. The trial court granted specific Sugar Shack R.O.W. to the point of its intersection with Roy Boulevard and to petitioners to P.E. Roy, the parties intended to permit access by P.E. Roy over The trial court concluded that, at the time of conveyance from the

conclusion based on the evidence presented. Id. disturb its finding if a reasonable person could have reached the same implied easement is a question of fact for the trial court, and we will not because the parties so agreed. Id. at 717. The issue of whether there was an convenient to have the grant. Id. An easement by implication arises only easement by implication will not be found merely because it would be right was not granted.” Id. (quotation omitted). The law is well - settled that an The question is whether “the parties could reasonably have thought that the an implied grant, the circumstances surrounding the conveyance control.” Id. and ellipsis omitted). However, because “this doctrine is based on the theory of such use is beneficial.” Blaisdell v. Raab, 132 N.H. 711, 716 (1990) (quotation and is reasonably necessary for the fair enjoyment of th e tenement to which tenement in favor of another, which at the time of severance of title is in use the owner imposes an apparently permanent and obvious servitude on one An easement by implication is presumed to exist if, “during unity of title

easement by implication over Sugar Shack R.O.W. by the trial court, we interpret its order as finding that P.E. Roy had an R.O.W. because the access was not necessary. Although not expressly stated the trial court erred by granting P.E. Roy a right of access over Sugar Shack We also disagree with the petitioners to the extent that they argue that p. 6 6

Sugar Shack R.O.W. See Village Green, 1 p. 6 67 N.H. at ___. the contrary, P.E. Roy has the right and duty to maintain his easement over rule regarding easement maintenance. In the absence of such an agreement to identified any other agreement with P.E. Roy that displaces the common law not address its maintenance in the conveyance. The petitioners have not Sugar Shack R.O.W., and, therefore, as the trial court noted, the parties did Shack [R.O.W.].” As explained above, however, t he deed makes no mention of maintenance. ... Only the [petitioners] have the right to maintain Sugar right to maintain the road or interfere with the road in any way, including over Sugar Shack R.O.W. to reach his 103 - acre parcel, it found that he had “no Although the trial court concluded that P.E. Roy has the right to travel

have we found any, to support this proposition. the easement existed prior to conveyance; they, however, cite no authority, nor holder the right and duty to maintain the easement is dependent upon whether (2004). T he petitioners suggest that the rule granting the dominant estate rights” of its owner. 25 Am. Jur. 2d Easements and Licenses § 82, at 581 “increase the burden on the servient estate or unreasonably interfere with the in the grant.”). In so doing, however, the owner of the easement may not do whatever is necessary t o make it passable or usable for the purposes named Hotel Co., p. 6 68 N.H. 38, 42 (1894) (“The grantee of a defined way has the right to (decided March 20, 2015) (quotation and ellipsis omitted); see also White v. the c ontrary.” Village Green Con dominium Ass’n v. Hodges, 167 N.H. ___, ___ granted, ... unless otherwise required by the easement or other agreement to to maintain an easement so that it can be used for the purpose for which it was “Generally, the dominant tenant of an easement has a right and the duty

(Quotation omi tted.) We agree. intended to limit P.E. Roy’s use and maintenance of Sugar Shack R.O.W. enjoy the right - of - way,” and that there was no evidence that the parties grantee of a right - of - way takes by implication whatever rights are necessary to Shack R.O.W. He asserts that, “unless specifically stated to t he contrary, the concluded that he, as the dominant estate holder, could not maintain Sugar We next consider P.E. Roy’s argument that the trial court erred when it

I I I. Trial Court’s Ruling Regarding Maintenance of Sugar Shack R.O.W.

implication over Sugar Shack R.O.W. demonstrate that the trial court erred by granting P.E. Roy an easement by at p. 7 71 p. 6 6 - 17. Consequently, we conclude that the petitioners ha ve failed to Adversity is not a requirement for finding an easement by implication. See id. use of Sugar Shack [R.O.W.] may have been permissive” is misplaced. The petitioners’ argument that the trial court “did not consider that the 7

have not demonstrated reversible error. See id. i t, the record submitted on appeal, and the relevant law, we conclude that the y Based upon our review of the tri al court’s order, the petitioner s ’ challenges to demonstrating reversible error. Gallo v. Traina, 166 N.H. p. 7 737, 740 (2014). A s the appealing part ies, the petitioners ha ve the burden of

agreement of the parties. by clear and convincing evidence” that the deed does not express t he true court concluded that the petitioners “ha[d] failed to meet their burden of proof omitted). Here, “[a]fter reviewing all of the testimony and exhibits,” the trial a heavy one.” Sommers v. Sommers, 143 N.H. 686, 690 (1999) (quotation (quotation omitted). The petitioners’ “burden of proof in a reformation action is expression of the agreement.” Gagnon v. Pronovost, 9 p. 7 7 N.H. 58, 64 (1951) reformation, the evidence must show that the instrument is not the true Roy to include the subdivision application covenants. “In order to support to reform the deeds relating to the lots owned by the Robichauds and by Jason The petitioners argue that the trial court erred by denying their request

IV. Trial Court’s Denial of Deed Reformation Request

easement. See 25 Am. Jur. 2d Easements and Licenses § 82, at 581. Roy’s actions interfered with the rights of the petitioners or other use r s of the court deems warrante d, including, if necessary, determination o f whether P.E. trial court’s ruling on this issue and remand for further proceedings as the trial maintain the easement over Sugar Shack R.O.W. Accordingly, we reverse the trial court erred in ruling that P.E. Roy does not have the right and duty to petitioners or other users of the easement. We, therefore, hold only that the whether P.E. Roy’s specific a c ts of maintenance interfered with the rights of the that P.E. Roy “has no right to maintain the road,” it did not reach the issue of order does not support this assertion. Rather, b ecause t he trial court f ound subject [the m] to ‘unnecessary inconvenience.’” Our review of the trial court’s “maintenance would interfer e with the road,” and “this interference would The petitioners further assert that the trial court found that P.E. Roy’s

(2000). easement); Restatem ent (Third) of Property: Servitudes § 4.13, at 631 - 32 maintenance obligations when both dominant and servient estates utilize an right to also maintain Sugar Shack R.O.W. See id. at ___ (discussing accomplished by [the petitioners],” this fact alone does not affect P.E. Roy’s We note that, even if, as the petitioners assert, “maintenance [is] a lready being being accomplished by [the petitioners] to serve other lots in [the] subdivision.” from maintaining Sugar Shack R.O.W. because “the maintenance [was] already The petitioners argue that the trial court co rrectly prohibited P.E. Roy p. 8 8

successors and assigns, and that the grantor will, and the heirs, had good right to sell and convey the same to the grantee, heirs, were free from all incumbrances, except as stated, that the grantor seized in fee simple of the granted premises, that the said pre mises the time of the delivery of such deed, the grantor was lawfully for himself or herself, heirs, executors and administrators, that, at assigns, t o their own use, with covenant on the part of the grantor, of a deed in fee simple to the grantee, heirs, successors and shall, when duly executed and delivered, have the force and effect A deed in substance following the form appended to this section

RSA 477:27 states, in relevant part:

based upon RSA 477:27 and, thus, invoke the s tatutory exception to the rule. The respondents contend that they are entitled to attorney’s fees and costs fees.” Appeal of Local Gov’t Ctr., 165 N.H. 790, p. 8 813 (2014) (quotation omitted). statutorily or judicially created exceptions, pa rties pay their own attorney’ s “New Hampshire generally follows the American Rule; that is, absent

statutory scheme.” Id. at 519 (quotation omitted). “We interpret statutes not in isolation, but in the context of the overall plain and ordinary meanings to words used.” Id. at 51 p. 8 8 - 19 (quotation omitted). examine the language found in the statute, and where possible, we ascribe the (quotation omitted). “When construing the meaning of a statute, we first entire statutory scheme.” Coco v. Ja skunas, 159 N.H. 515, 518 (2009) intent in enacting them, and in light of the policy sought to be advanced by the statutory construction. Our goal is to apply statu tes in light of the legislature’ s statute de novo. Id. “We are guided by a number of well - settled principles of 610 (2013) (quotation omitted). We review the trial court’ s interpretation of a statute considered as a whole.” Wells Fargo Bank v. Schultz, 164 N.H. 608, final ar biter of the intent of the legislature as expressed in the words of the Th is issue presents a question of statutory interpretation. “We are the

[petitioners] ... to reform [the] deed[s],” and denied their requested recovery. “misinterpret[] RSA 477:27, particularly in context of the claim by the RSA 477:27 (2013). The trial court concluded tha t the respondents “all persons,” even from challenges brought by the petitioners themselves. See petitioners were required to defend the respondents’ deeds from challenges by accordance with the statut ory requirements relating to warranty deeds, the warranty deeds against the petitioners’ claims. The respondents assert that, in denying their request for attorney’s fees and costs incurred in defending their On cross - appeal, the respondents argue that the trial court erred by

Warranty Deed V. Trial Court’s Denial of Fee Request Based upon Claimed Breach of p. 9 9

title and right to convey set forth in the first three covenant s.” Id. petitioners’ suit, and we do not interpret the suit as a challenge to “the clear not articulated an argument as to which of the covenants are implicated by the of one of the first three covenants. See Coco, 15 p. 9 9 N.H. at 523. P.E. Roy has petitioners’ suit must constitute a lawful claim or demand within the meaning covenant in RSA 477:27 — the covenant of warranty or duty to defend — the included in the deed to the 103 - acre parcel. In order to trigger the fourth Shack R.O.W., a road owned by petitioner Raymond Choquette and not The petitioners challenged P.E. Roy’s use and maintenance of Sugar

first inst ance. law, we need not remand the issue for the trial court’s determination in the applicability of RSA 477:27 to P.E. Roy’s counterclaim presents a question of made by only Jason Roy and the Robichauds. However, because the court appears to have directed its ruling on this i ssue to the counterclaims raised the breach of warranty covenants in his answer to the petition, the trial Robichauds. With respect to P.E. Roy’s claims, we first note that, although he consider P.E. Roy’s claims separately from those of Jason Roy and the warranty deeds. Because the challenges differ among the respondent s, we their attorney’s fees and costs because the petitioners failed to defend their The respondents contend that they are, “as a matter of law,” entitled to

A.3d 2 p. 9 95, 29 8 (Me. 2012). Property § 1010, at 276 (3d ed. 1975 & Supp. 1990); McCormick v. Crane, 37 all lawful claims by third persons. See 4 H. T. Tiffany, The Law of Real the covenant of warranty encompasses the duty to warrant and defend against doing so, including attorney’s fees. See id. at 523 - 24. Generally, the sco pe of title to the property or indemnify the grantees for their reasonable expenses in requiring a grantor who convey s property by warranty deed to either defend the covenant, referred to as the covenant of warranty or the duty to defend, as covenants.” Coco, 159 N.H. at 523. We have previously interpreted this same, ’ that is, the clear title and right to convey set forth in the first three 523. “The fourth covenant re quires the grantor to warrant and defend ‘ the claims and demands of all persons.” RSA 477:27; see also Coco, 159 N.H. at the same to the grantee and heirs, successors and assigns, against the lawful successo rs and assigns”; and (4) “that the grantor will... warrant and defend grantor had good right to sell and convey the same to the grantee, hei rs, premises were free from all incumbrances, except as stated”; (3) “that the lawfully seized in fee simple of the granted premises”; (2) “that the said grantor: (1) “that, at the time of the delivery of suc h deed, the grantor was The statute, therefore, mandates four separate covenants on the part of the

lawful claims and demands of all persons. to the grantee and heirs, successors and assigns, against the executors, and administrators shall, warrant and defend the same p. 10 10

some omitted provision or deleting some existing provision so that the of an action for reformation is to change a written instrument by inserting Mullin v. Eaton, 19 A. 371, 372 (N.H. 1889) (quotation omitted). “The purpose

co nduct of the remaining parties. mistake of one party, accompanied by fraud or other inequit able intended by the parties thereto; and (2) where there has been a instrument, in its written form, does not express what was really entered into, but the contract, deed, settlement, or other when there has been a meeting of minds, an agreement a ctually well - defined cases: (1) Where there is a mutual mistake, — that is, Equity has jurisdiction to reform written instruments in but two

Instruments § 5, at 253 (2011) (footnotes omitted). instrument express the real agreement.” 66 Am. Jur. 2d Re formation of intentions that were incorrectly reduced to writing and to make an erroneous Reformation, in contrast, “is made to effectuate all the parties’ common

the covenant has not been breached. Id. encumbrance has been disclosed in a deed, even if only by strong implicati on,” encumbrance.” McCormick, 37 A.3d at 299. Accordingly, “[w] hen an from encumbrances arises from a complete failure to disclose an purposes of the parties.”). “[A] claim for breach of the [covenant] of freedom deed in its broad, generic sense, but is qualified and limited by the apparent N.H. 421, 425 (1 902) (“[T] he word ‘incumbrance’ is not ordinarily used in a Covenants, Etc. § 89, at 6 2 8 (2005) (footnotes omitted); see Gill v. Ferrin, 71 facts as they exist at the time the warranty deed is delivered.” 20 Am. Jur. 2d relating to things in existence at the time it was made,” and “depend s upon the at 299. A covenant against encumbrances, however, “is generally regarded as encumbrances that have not been disclosed in the deed.” McCormick, 37 A.3d ensure that the value of the property conveyed is not diminished by any “The purpose of the [covenant] of freedom from encumbrances is to

“were free from a ll incumbrances, except as stated.” RSA 477:27. challenge under the second covenant in RSA 477:27 — that the properties argument to be that the petitioners’ actions against them amounted to a Although not expressly stated, we interpret Jason Roy ’s and the Robichauds ’ the counterclaims for breach of title” made by Jason Roy an d the Robichauds. We next consider whether the trial court erred in “find[ing] no basis for

not entitled to statutory attorney’s fees or costs. did not involve any of the covenants in RSA 477:27, we hold that P.E. Roy is e ncumbrances with respect to P.E. Roy’s land. Because the petitioners’ suit using Sugar Shack R.O.W. does not implicate the petitioners ’ covenant against Furthermore, P.E. Roy ’s implied easement to traverse the petitioners’ land p. 11 11

sufficient to demonstrate that the issue was raised before the trial court and their burden, as the appealing party, to provide this court with a record 164 N.H. 558, 560 (2013). Consequently, the respondents have failed to satisfy t he y made this argument in the trial court. See Lakes Region Gaming v. Miller, does not reflect, and the respondents have not pointed to, any evidence that Act,” including court’s discretion to award attorney’s fees). However, the record A:16 (2009) (providing civil remedies as part of the “Land Sales Full Disclosure defending their Warranty Deeds, is found in RSA 356 - A:16, II.” See RSA 356 - [petitioners] to pay the [respondents’] costs and legal fees, incurred in The respondents also argue that “[f]urther support for ordering the

warranty claims. Jason Roy’s and the Robichauds’ request for recovery on the ir breach of suits did not implicate RSA 477:27, and the trial court did not err in denying reformation and were not actions under the deed. As such, the petitioners’ petitioners’ suits ag ainst Jason Roy and the Robichauds were in the nature of existed at the time of conveyance. Consequently, we conclude that the petitioners attempted to modify the deeds to reflect the agreement they alleged they did not reflect the true intention of the parties. By their suits, the the Robichauds’ deeds did not include the application covenants, an d thus Here, the petitioners asserted that, by mutual mistake, Jason Roy’s and

title by third party and complaint alleging mutual mistake in deed). 1361, 136 2 - 6 3 (Haw. Ct. App. 1982) (recognizing distinction between attack on action by grantor); see also Civic Realty, Inc. v. Development, Inc., 641 P.2d 2005) (declining to award attorney’s fees under warranty deed in reformation reformation of a deed. See Anderson v. Selby, 700 N.W.2d 696, 702 (N.D. hold that RSA 477:27 does not authorize attorney ’s fees for a n action seeking limited to the original parties and their successors in title). Consequently, we third persons), with Bourne, 540 A.2d at 361 (stating that reformation is (explaining that covenant of warranty is a promise to defend lawful claims by different from an action challenging title. Compare McCormick, 37 A.3d at 29 8 The nature of an action to reform a deed is, therefore, qualitatively

original parties to the deed and their successors in title”). (recognizing that “the right to seek reformation of a deed is limited to the parties to instruments”); Bourne v. Lajoie, 540 A.2d 359, 361 (Vt. 1987) Instruments § 59, at 304; see id. § 60 (entitled “Persons in privity with original the deed or in privity with a party to the deed.” 66 Am. Jur. 2d Reformation of Generally, “to be entitled to the reformation of a deed, one must be a party to expression of the agreement.” Gagnon, 97 N.H. at 64 (quotation omitted). reformation, the evidence must show that the instrument is not the true Reformation of Instruments § 5, at 253 (footnote omitted). “In order to support document conforms to the original agreement of the parties.” 66 Am. Jur. 2d p. 12 12

DALIANIS, C.J.