29 N.Y.S. 652 | N.Y. Sup. Ct. | 1894
The import of the terms of the deed of conveyance made by Jason Hunt and wife to Anson D. Brown and Esther J. Brown, his wife, was that the grantees took title as tenants by the entirety, and, therefore, that, on the death of the wife, the husband became seised of the entire estate in the premises. Bertles v. Nunan, 92 N. Y. 152. The plaintiffs allege that the relation of the grantees to the title was not correctly represented by the deed, but that by it they intended and sought to take title as tenants in common, and that the words essential to the creation of such tenancy were omitted from the deed by inadvertence or mistake. The referee, upon the subject, found as facts that, by an agreement between Anson D. Brown and Esther J. Brown, they agreed to purchase the lot; that each should pay one-half of the purchase price; that a deed should be taken by them as tenants in common, each to have an equal undivided half; that Anson D. Brown should prepare the deed, containing a provision to that effect; that he did prepare the deed, which was executed by the grantors; that each of the grantees paid one-half of the purchase money, and the deed was delivered to Anson D. Brown, who caused it to be recorded; that he, as well as she, intended that the deed should convey to the wife an equal undivided half of the premises as tenants in common ; that she had no actual knowledge of the terms of the deed, but believed that it did contain a provision to that effect, assented to nothing to the contrary, and never knew that its legal effect was otherwise; that in 1874 the grantees erected a house on the premises, and each of them paid one-half of the expense of the building; that in March, 1876, Anson D. Brown, by deed, conveyed an equal undivided half of the premises to Esther J. Brown, his wife; that she paid him, as the consideration, the fair value of such half; and that all the payments so made by her were made out of and from her separate estate, the most of which came to her from her father. These facts have the support of evidence, and the question is whether or not they are sufficient to permit the relief sought and directed by the referee. The judgment of the defendant Dow was recovered in 1887, upon a debt incurred by Brown in 1881. He caused the premises to be sold upon execution issued upon his judgment, and took the sheriff’s certificate of sale. The alleged purpose of the action was not to reform the agreement made bétween the grantees pursuant to which the deed was taken in their names, but to reform the deed because it was not in terms made to conform to such understanding. The plaintiffs, in the outset, encountered the presumption that all prior negotiations and agreements between the grantees on the subject were finally reduced to and concluded by the terms and legal effect represented by the deed; and they assume the burden of overcoming by evidence such presumption. This they have done in so far as to make it appear that Mrs. Brown did not assent that the deed should be made to create any other relation of the grantees to the premises than that of tenancy in
In the present case the agreement in question was made between the grantees alone, and had relation only to the interests which they respectively intended to take in the land. It was a matter about which the grantors were necessarily indifferent. The reason it was not consummated by the terms of the conveyance was attributable to the failure of the .husband to so draw the deed as to express in that instrument that which was essential to give effect to the agreement pursuant to which they, as between themselves, made the purchase. There was no actual fraud on the part of Mr. Brown; and, while he knew how the grant was expressed, his mistake or misunderstanding was as to the effect of the language employed. It is reasonable, in view of the relation between him and his wife, to assume that she confidently relied upon him to prepare the deed according to their understanding, and that she' rested in the belief that it was so made; and the fact that she did not ascertain or know that it was in effect otherwise did not necessarily charge her with loches, or deny to her or her heirs the right to make the mistake and misapprehension available for reformatory relief. Mastin v. Mastin (Sup.) 1 N. Y. Supp. 746; Institution v. Burdick, 87 N. Y. 40. It seems, in view of the facts so found, and which the evidence tends to prove, that both the husband and the wife believed that their relative interests in the property taken by the conveyance were those with which they intended and sought by it to become vested, and thus (assuming that both of them were advised of the contents of the deed) their mistake may be said to have been mutual as to the effect of the words employed to express