123 Cal. 324 | Cal. | 1899
Action to reform a deed on the ground that it was executed under a mutual mistake of the parties to it. It appears from the findings of fact that prior to December 10, 1890, plaintiff and defendant Charles Dondero were the owners of a tract of land situated near the town of Watsonville, containing about seventy-four acres; on or about said date they agreed to divide said land so as that each could own his interest in severalty, and to that end agreed to make a certain private roadway, running through the tract from west to east, the dividing line, plaintiff to take the portion on the southerly side and defendant Charles Dondero that on the northerly side of this road; this private road was entered by a gate at the county road and terminated on the eastern boundary line of the tract at a stake marked “C & D” midway of two cherry trees; a surveyor was employed to establish the center line of this road which was to become the division line; he ran a straight line between the two points agreed upon, which gave a course north seventy degrees east, distance thirty-eight and fifteen one-hundredths chains, instead of following along the center of said road as was agreed should be done. Some distance from the gate entrance and s„uth of this road plaintiff’s buildings, barns, and outhouses were situated, “a sufficient distance from the southerly line of said private road so as to make and render the said barns, buildings, and outhouses convenient of access and use by said plaintiff”; a plat is attached to the complaint which the court finds correctly shows the location and course of this road and its center line, and the situation of plaintiff’s said buildings relative thereto. The contention turns upon the question as to the location of this center line. Plaintiff contends and the court found, that the center of this road from the center of the gate took a course north seventy, degrees east for twenty-one and six
1. The principal question raised by appellant is, that the evidence does not support the findings. It is true, as appellant contends, that evidence warranting the reformation of a deed must be clear and convincing and not loose, equivocal, or contradictory, leaving the mistake open to doubt; and unless the proofs come up to this standard equity will withhold relief. But these are rules for the government of the trial court, and are not controlling in this court where the findings find support in the evidence. (Ward v. Waterman, 85 Cal. 502.) This court cannot enter upon an examination of all the evidence to determine where the preponderance lies. Upon questions of fact its province is to determine whether there be evidence tending to support the findings and it cannot decide as to the weight of the evidence where there is a conflict.
Plaintiff testified that the agreement was to divide the land by the center .of the private road which he described as delineated on the plat used at the trial, and as running through the tract from west to east; the instructions given the surveyor were to follow the center of this road; he was not present when the survey was made, but left one Scrivani (who was in his employ) to represent him; with respect to the road as shown on the map, .his buildings were a little distance south of the road (the exact distance is not given, but it was sufficient for their convenient use); after the survey was made he and Dondero took the field notes to the attorney of the parties and directed him to make the deed according to the survey; neither party knew anything about courses, and plaintiff testified that when he signed the deed he knew nothing about the description in it; after the deed was executed the parties continued to use the road as before, and not until in 1895, when Dondero commenced to erect' his fence, did plaintiff know that the survey ran so close to his buildings and did not follow the center of the road at that point; the fence made by Dondero on the surveyed line was within three feet of two of plaintiff’s buildings and within a foot and a half of one
Appellant contends: 1. That plaintiff was bound by the survey because the person who acted for him at the time knew that the line was established where defendants claim it should be; and 2. That plaintiff is charged with knowledge of this fact or with the means of knowledge which he had so near at hand. It appears, however, that after the survey was made the parties continued to use the road for five years before Dondero made known his claim by fencing on the surveyed line. During all this time plaintiff was indulging the mistake that the surveyed line was along the middle of this road, as the agreement called for; he saw no stakes along this disputed part of the road and might well have rested upon the belief that the line was along the middle of the road. The jury and court found, upon sufficient evidence, that plaintiff and Dondero had agreed upon a line in the middle of this road, and we do not think plaintiff’s agent can be presumed to have had authority to consent to any deviation from that agreement in a matter of such importance to plaintiff. The evidence does not disclose his instructions. Scrivani (the agent) testified that he carried the chain and stuck the stakes; and the surveyor testified that Scrivani must have seen that the line ran close to the buildings and that he made no objection to it. There is no evidence that Scrivani communicated this fact to plaintiff, and plaintiff testified that he did not know where the surveyed line was until in 1895 when Dondero began to make his fence. In the absence of any evidence to the contrary, it must be presumed that plaintiff authorized no
2. It was not error to admit oral evidence as to the mistake and as to how it arose (Isenhoot v. Chamberlain, 59 Cal. 630); and it is not necessary that the mistake should have been mutual. (Civ. Code, sec. 3399; Moore v. Copp, 119 Cal. 429.)
3. Error is alleged in allowing the introduction-of a deed from Dondero, executed in 1893 (three years after the agreed division), in which he refers to this private road as a south boundary. The purpose of this evidence no doubt was to show that he recognized the existence of this road, and that it bounded his property on the south. We think the evidence was admissible, because plaintiff and Dondero were, according to plaintiff’s testimony, at that time using the road as before, and plaintiff had not then learned where the surveyed line was. The evidence also tended to corroborate plaintiff’s evidence.
No point is made that the finding, as to Mrs. Dondero’s knowledge of the facts was not justified by the evidence. Mr. Dondero testified that he gave plaintiff notice in 1895 as to building the division fence, and the case seems to have been tried as though he were the owner or controlled the property north of the road. Whether his deed to his wife in October 1894, would affect the rights of plaintiff need not therefore be and is not considered.
The judgment and order should be affirmed.
Haynes, C., and Britt, C., concurred.
For the reasons given in the foregoing opinion the judgment and order are affirmed.
Temple, J., McFarland, J., Henshaw, J.