Corrigan v. Tiernay, 100 Mo. 276

Corrigan v. Tiernay

100 Mo. 276 | Mo. | 1889

Black, J.

This was an action of ejectment for a lot having a front of about twenty-two feet by a depth of one hundred and thirty-seven feet in St. Louis. The defendant Patrick Tiernay answered by way of a general denial, and then set up an equitable defense, praying for affirmative relief. Issues of fact were submitted to a jury, and on the incoming of a verdict the court made a decree divesting the plaintiffs of the title and investing the same in defendant. The evidence is not preserved in the record before us, and the only question for our consideration is, whether the decree is warranted by the pleadings.

The answer of Patrick Tiernay sets up these facts : That his wife Catherine died in December, 1885; that the plaintiffs are her children by a former marriage; that, in June, 1879, he became desirous of acquiring a home for himself and wife by having the title vested in them as an estate of entirety; that, at the last-mentioned date, he purchased the property described in the petition, it then being a vacant lot, from one Smithwick, and paid therefor, out of his own funds, the sum of three hundred dollars; that he directed Smithwick to make the deed to himself and wife as joint grantees; that Smithwick, or his agent, through some mistake or misapprehension, caused to be executed to defendant a deed, describing the grantee therein as “Catherine Tiernay, wife of Patrick Tiernay;” that he was unable to read writing or to read the deed, and requested the *280same to be read to him; that, upon hearing it read, he understood and was advised that the property was conveyed to his wife and to himself, and that the survivor would inherit the entire estate; that, thereupon, he caused the deed to be recorded, and with his own funds erected a house on the lot at a cost of thirty-eight hundred dollars; that he did not know that the property had been conveyed to his wife until after her death, and when this suit was brought; that he never agreed that the property should be conveyed to her alone, and never intended it as an advancement; and that his wife, during her life, made no claim to the property.

The plaintiffs went to trial on this answer without having demurred to it, and without having made any motion to require the defendant to make it more specific and definite; so that the objections that the answer does not show who read the deed to defendant, or who advised him that the property was thereby conveyed to himself and wife, must be disregarded. As the case is presented on this record, we must assume that every allegation was proved by the evidence offered on the trial.

The point pressed upon our attention is, thg,t, according to the answer, Patrick Tiernay had full knowledge of all of the facts, and the mistake was simply a mistake of law in supposing the deed would convey the title to him and his wife jointly. It is a well-established general rule that a court of equity will not grant relief against a mistake of law unmixed with any mistake of fact. Price v. Estill, 87 Mo. 378; Norton v. Highleyman, 88 Mo. 621. There are, however, some exceptions to this general rule. Cases arise where there is a mixed mistake of law and of fact in which relief will be granted. Thus in the case of Griffith v. Townley, 69 Mo. 13, an administrator sold land of his intestate, supposing that it was the fee that he was selling, and the *281purchaser supposed that it was the fee that he was buying. It transpired that nothing passed by the sale but the equity of redemption. It was held there was such a mutual mistake of fact and law as entitled the purchaser to relief. See also Cassidy v. Metcalf, 66 Mo. 519.

But it.is not necessary to a disposition of the case in hand to follow out the many distinctions taken in the class of cases just mentioned. If an agreement is what the parties thereto intended it should be, equity does not interfere because the parties did not urfderstand its legal effect. “The principle underlying the rule is” says Mr. Pomeroy, “that equity will not interfere for the purpose of carrying out an intention which the parties did not have when they entered into the transaction, but which they might .or even would have had, if they had been more correctly informed as to the law.” 2 Pom. Eq. Jur., sec. 848. A different case is presented where the instrument, as it is reduced to writing, fails to express the contract which the parties actually entered into. In such cases equity will reform the contract, and this, too, though the instrument fails to express the contract which the parties made by reason of a mistake of law. Says the author last-named: “In short, if a written instrument fails to express the intention which the parties had in making the contract which it purports to contain, equity will grant its relief, affirmative or defensive, although the failure may have resulted from a mistake as to the legal meaning and operation of the terms or language employed in the writing.” 2 Pom. Eq. Jur., sec. 845.

Now the answer of Tiernay states that he was desirous of acquiring a home by having the title vested in himself and wife as an estate by the entirety. The legal effect of a conveyance to husband and wife is to create such an estate; and’ the survivor takes the whole. Garner v. Jones, 52 Mo. 68; Modrell v. Riddle, 82 Mo. 31. *282The answer discloses the fact that Smithwick resided in the state of Kansas, but had an agent in St. Lonis; and it then states that defendant “ directed the said grantor Smithwick, through his agent in St. Louis, to make the deed of said property to Catherine Tiernay and defendant as joint-grantees; that, thereupon, through some mistake or misapprehension of said Smithwick or his agent, the said grantor executed and delivered a deed to the defendant to the said premises * * * describing the grantees as Catherine Tiernay, wife of Patrick Tiernay.” Here is enough to show that the contract which the defendant made was that the deed should be made to himself and wife as grantees. This contract the deed does not express, and it is competent for a court of equity to make it express the real contract. It matters not that the defendant heard the deed read and supposed and was advised that it created an estate in himself and wife with survivorship. It does not create such an estate, and, therefore, is not the contract which defendant made.

The title should be in the defendant, Patrick Tiernay, and we see no objection to the decree investing

the title in him. The judgment is affirmed.

All concur.