325 S.E.2d 340 | S.C. Ct. App. | 1985
In this appeal by Betty Jo Blanton from an order rescinding a deed executed by the respondent Samuel Lee Blanton, the issue we address is the quantum of proof required in
Samuel brought this action seeking, among other things, to have cancelled on the grounds of mutual mistake a deed by which he conveyed a one-half interest in certain real property to Betty Jo, his aunt. He claims that he did not know he was executing a deed, that he did not intend to convey any interest to Betty Jo, and that Betty Jo did not intend for him to convey the one-half interest to her. The special referee, to whom the case was referred, failed to find mutual mistake; however, the circuit judge held that Samuel proved mutual mistake by a preponderance of the evidence and ordered the deed rescinded.
Although no South Carolina case either found by us or called to our attention directly addresses the issue concerning the proof required in an action to cancel a written conveyance on the grounds of mutual mistake,
Rather than make our own findings of fact and determine the issue regarding mutual mistake in accordance with our own view of the evidence, which we have the authority to do in this instance [see Townes Associates, Ltd. v. City of Greenville, 266 S. C. 81, 221 S. E. (2d) 773 (1976); Price v. Derrick, 262 S. C. 341, 204 S. E. (2d) 389 (1974)], we prefer to remand the issue of mutual mistake to the circuit judge and permit him to determine the question anew.
Reversed and remanded.
We read neither Brock v. Brock, 218 S. C. 174, 61 S. E. (2d) 885 (1950), Eargle v. Eargle, 151 S. C. 85, 148 S. E. 699 (1929), nor Jumper v. Queen Mab Lumber Co., 115 S. C. 452, 106 S. E. 473 (1921), to hold that a mere preponderance of the evidence is sufficient to set aside either a written conveyance or contract.