229 Ill. 119 | Ill. | 1907
delivered the opinion of the court:
Appellees filed no brief in this case. The work, therefore, of investigating and deciding the legal questions involved has been greater than if the customary aid in that regard had been received.
The doctrine is elementary that parol evidence is not, in general, admissible between the parties to vary a written instrument, whether the same has been voluntarily adopted or made in pursuance of legal necessity. It is equally well settled that mistake, fraud, surprise and accident furnish exceptions to this otherwise universal doctrine. Parol evidence in support of these exceptions may, in proper modes and limits, be admitted to. vary written instruments. These exceptions rest upon the highest motives of policy and expediency, for otherwise an injured party would generally be without remedy. (2 Pomeroy’s Eq. Jur.—1st ed.—sec. 858; 1 Beach on Modern Eq. Jur. secs. 48-51; 1 Story’s Eq. Jur.—12th ed.—sec. 138, and note on “Mistake of Fact.”) This doctrine has been applied many times by this court in the correction of deeds and contracts made out of court where the mistake was one of fact, mutual and common to all the parties to the instrument, and the proof clear and convincing. (Kelly v. Galbraith, 186 Ill. 593; Hunter v. Bilyeu, 30 id. 228; Lindsay v. Davenport, 18 id. 375.) This court has also, upon bill in equity, corrected the description of the land in a master’s deed in a foreclosure proceeding, where the property was properly described in the mortgage and in the advertisement of sale, (Foster v. Clark, 79 Ill, 225,) and in a sheriff’s deed where the proceedings leading up to it were regular; (Gilbreath v. Dilday, 152 Ill. 207;) but so far as we are advised there has been no case in this court similar to the one here presented, where the misdescription occurs in all of the court papers, including the bill for partition, decree of sale, advertisement and master’s deed.
This question, however, has been passed upon in other jurisdictions. In Waldron v. Letson, 15 N. J. Eq. 126,' a parcel of land had been struck off under foreclosure decree and conveyed to the purchaser under a mistaken impression that the mortgage covered the entire tract, the price for the entire tract being bid and paid and the purchaser put in possession. It was afterwards discovered that from a mistake in the description in the mortgage a portion of the premises was not covered by it. The description in all of the foreclosure proceedings followed the mistake found in the original mortgage. The court held that the mistake could be corrected in equity, stating that the fact that the mistake originated in the mortgage and was repeated throughout the entire proceedings, “while it increases the apparent difficulty in administering relief does not affect the substantial equity of the case; * * * that where a parcel of land is sold under decree of foreclosure and is struck off and conveyed to the purchaser under an erroneous impression that the mortgage covered the entire tract, the price as for the entire tract being bid and paid and the purchaser put in possession, and it is afterward discovered that from a mistake in the description the mortgage does not cover the entire premises intended to be mortgaged, by reason whereof the legal title fails, the purchaser is entitled to be protected in the peaceable possession of the land purchased.” To the same effect are Loss v. Obry, 22 N. J. Eq. 52, and Zingsen v. Kidd, 29 id. 516. In Fore v. Foster, 86 Va. 104, it was held that chancery had jurisdiction to correct mistakes, whether occurring in the course of legal proceedings or elsewhere, and in case there was no neglect or laches this could be done even though the Statute of Limitations had run. In Pulliam v. Wilkerson, 66 Tenn. 611, it was held that chancery had jurisdiction to correct errors of description of land sold under proceedings for partition instituted in the county court. In that case the land was described as being in district 2, when, in fact, it was in district 3. In Gill v. Pelkey, 54 Ohio St. 348, it was held that equity had jurisdiction to correct a mistake in a deed in proceedings by an administrator in the probate court to sell land of an intestate. The mistake in that case was not only in the deed, but in the report of the appraisers to the probate court before the land was ordered sold, and the purchaser, on account'of the mistake, obtained more land than was intended to be sold and more than he paid for. In Smith v. Butler, 11 Ore. 46, á misdescription of the land originated in the report of the referees and was confirmed by the court and incorporated in the decree. It was held that equity would grant relief and correct the mistake. In Cosby's Heirs v. Wickliffe, 51 Ky. 202, a commissioner appointed by decree of the chancellor sold two-thirds of the estate but reported that he had sold the entire estate and in obedience to the order of court conveyed the whole, but it clearly appearing that it was intended to sell only two-thirds, the court there held that equity could correct the error. The Supreme Court of Indiana has held that where the property was misdescribed in the mortgage and was sold under foreclosure by this wrong description, equity did not have jurisdiction to correct the mistake in the foreclosure proceedings. (Miller v. Kolb, 47 Ind. 220; Lewis v. Owen, 64 id. 446.) It has been held, however, by that court that equity had jurisdiction to correct the description in the original mortgage and that another sale by the proper description could be ordered. (Armstrong v. Short, 95 Ind. 326; Conyers v. Mericles, 75 id. 443.) The courts of New Jersey, California and Florida have held that equity had jurisdiction to correct the error in one proceeding without first reforming the mortgage and ordering another sale. Waldron v. Letson, supra; Quivey v. Baker, 37 Cal. 465; Greely v. DeCottes, 24 Fla. 475.
We think the great weight of authority is that equity has jurisdiction to correct such mistakes when the proof is clear and the rights of innocent third parties have not intervened, even thought the mistake runs through the entire judicial proceedings. In addition to the cases already referred to, the following authorities tend to support this conclusion: Jeremy’s Eq. Jur. *492; 2 Pomeroy’s Eq. Jur. (1st ed.) sec. 871; Baxter v. Tanner, 35 W. Va. 60; Dodson v. Lomax, 113 Mo. 555; Howlett v. Central Carolina L. & I. Co. (S. C.) 27 S. E. Rep. 333; First Nat. Bank v. Brenneman's Bxrs. 114 Pa. St. 315; Gillespie v. Moon, 2 Johns. Ch. 585; Snyder v. Ives, 42 Iowa, 157; 12 Ency. of Pl. & Pr. p. 111, and cases there cited.
Appellant E. N. Dillard cannot be charged with negligence or laches in this matter. The record in this case discloses that the partition proceedings, the report of the commissioners, the master’s report, the decree and the master’s deed all described eighty-five acres of land, and that the ten and fifteen-acre tracts, which by this description overlapped, were clearly separate pieces, otherwise there would have been less than eighty-five acres; that all of the said eighty-five acres,—being all of the real estate left by said Kinchen H. Jones, deceased,—was intended to be sold to said E. N. Dillard in said partition proceedings; that he paid for all of it; that he has been in undisputed possession of all of it since that time; that the purchase money was' distributed to the parties entitled by law to receive it; that no rights of innocent third parties have intervened as to the land in question; that there was a mistake of fact in the partition proceedings,—that is, that said ten acres were incorrectly described; that this mistake was common to all parties connected with the proceedings, and that all persons interested were made parties to said proceedings. Manifestly, on this showing, under the authorities cited, equity and justice require that the master’s deed in the partition proceedings should be corrected as prayed, and that the decree should find that appellant E. N. Dillard was, at the time the bill herein was filed, the owner in fee simple of said “ten acres off of the north' side of the north-east quarter of the north-west quarter” of section 4, in township 8, south, range 2, east of the third principal meridian, in Williamson county, Illinois, in accordance with the prayer of said bill.
The decree of the circuit court will accordingly be reversed and remanded to that court, with directions to enter a decree in accordance with the views herein expressed.
Reversed and remanded.
