53 Kan. 291 | Kan. | 1894
The opinion of the court was delivered by
The purpose of this action was to rectify a mutual mistake in describing lands in a deed of conveyance which had been purchased by plaintiff from defendants. The averments of the petition are to the effect that, according to the understanding and agreement of the parties, a much larger quantity of land was purchased than was described in the conveyance. The purchase was made and the conveyance executed on December 4, 1884, and the plaintiff alleged that she supposed and believed that she had received a conveyance of the quantity of land agreed upon and intended to be1 conveyed, until about April 1, 1887, when the mistake was discovered. Soon thereafter, and within a reasonable time, she notified defendants of the mistake in the description, and demanded that the conveyance should be rectified in accordance with the mutual understanding and agreement of the parties, but the demand has not been acceded to by defendants. The legal title to the land intended to be conveyed, and not included in the conveyance, has remained in the defendants, so that the rights of third parties have not intervened and would not be affected by a correction of the alleged mistake. This action was begun on January 24, 1890, and, upon demurrer to the averments of the petition, the court held that the plaintiff was not entitled to the relief sought.
It is contended that the lapse of time is a bar to the correction of the conveyance. And it is said that this was the ground upon which the district court rested its decision. It is claimed that the five years’ statute of limitations applies in a case of this character, and that, as five years and one month elapsed from the execution of the instrument until the bringing of the action, the court was justified in refusing the relief. If that statute was applicable and began to run when the instrument was executed, the claim would be well founded; but
According to the allegations of the petition, the description written in the deed was an unintentional mistake which was shared by both parties to the transaction. No one else can be prejudiced by correcting the mistake and carrying out the intention of the parties. We think it is shown that there was no such negligence or laches on the part of plaintiff as will defeat a rectification of the deed of conveyance. The judgment will be reversed, and the cause remanded for further proceedings.