Beall v. Martin, 48 Neb. 479

Beall v. Martin

48 Neb. 479 | Neb. | 1896

Norval, J.

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 *480plaintiff joining in said conveyance. At tbe time of tbe transfer, one J. C. Black was in possession of, and cultivating, tbe land and tbe crops tbereon, as Beall’s tenant, bis lease not expiring until March 1, 1893. Plaintiff contends that tbe agreement and understanding between tbe vendor and vendee was that tbe sale was made subject to tbe lease of said Black, and that plaintiff should retain tbe landlord’s share of tbe crops, and that through tbe omission of tbe person who prepared tbe deed and took tbe acknowledgment of tbe grantors thereto, it failed to contain any reservation in regard to the lease or tbe growing crops. Upon plaintiff’s discovering tbe mistake in tbe deed, and learning that Martin claimed the right to gather tbe crops, this action was instituted to reform tbe deed to conform to tbe true and actual contract of tbe parties, and a temporary injunction was also granted restraining defendants from gathering tbe rent corn, which injunction was subsequently dissolved by tbe court.

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 *481Black’s lease, in accordance with tbe terms of tbe contract of tbe vendor and vendee. Tbe testimony introduced by tbe defendants squarely contradicts that given -on bebalf of tbe plaintiff. We are fully persuaded tbe evidence adduced was sufficient to support tbe decree, and it is accordingly

Affirmed.