48 Neb. 479 | Neb. | 1896
This is an appeal from a decree reforming a deed. September 27, 1892, tbe plaintiff, M. E. Beall, being tbe owner of tbe northeast quarter of section 12, town 1, range 19 west, conveyed tbe same by warranty deed to O. F. Martin, one of tbe defendants herein, tbe wife of tbe
Complaint is made of tbe allowing of tbe injunction. If it was wrongfully issued, that question cannot be now litigated, since tbe injunctional order was subsequently vacated by tbe court, which cured tbe error, if any, in the original granting of tbe writ. If defendants were damaged by reason of tbe issuance of tbe temporary order of injunction, their remedy is upon the bond given by tbe plaintiff, in order to obtain tbe writ.
That a court of equity has tbe power to decree tbe reformation of a deed so as to make it express tbe true intention of tbe party is clear. (Cox v. Ellsworth, 18 Neb., 664; Palmer v. Windrom, 12 Neb., 494; Hilton v. Crooker, 30 Neb., 707.) Tbe evidence introduced by plaintiff tends to establish that Beall reserved tbe corn; that tbe real agreement was not expressed in tbe deed; but that through mistake tbe scrivener who prepared tbe instrument for execution did not insert in said deed a reservation in favor of tbe plaintiff of bis share of tbe crops and tbe possession of tbe premises until tbe expiration of
Affirmed.