86 Va. 303 | Va. | 1889
delivered the opinion of the court.
On the 20th of July, 1869, John L. Peyton sold to James 0. Ivincaid two thousand acres of land in the Falling Spring Valley, in Alleghany county, at the price of $12,000—$4,000 to be paid in cash and the residue on long credits. On the 4th day of August, 1869, the said James C. Kincaid sold to the appellees, Payne and Oliver, a part of this land for $2,000, this being described in the contract as “ lying and being in the Falling Spring Valley, county of Alleghany, containing five hundred and seventy-eight acres, more or less, and generally known as ‘the loop.’” On'the 13th of August, 1869, James C. Kincaid sold to William Flanagan (whose interest was subsequently acquired by the appellants) another parcel of the same lands. This was by contract in 'writing, as was also the sale to the appellees. Subsequently the said John L. Peyton brought his suit in chancery to subject the lands sold to Kincaid to the payment of the balance of the unpaid purchase money. In this suit the unpaid balance of the purchase money was collected, and the deed having been filed by John L. Peyton in the papers of the cause, subject to the order of the court, when this result was attained. This deed, which conveyed the said land to Kincaid, was withdrawn by order .of the court granting such leave, and recorded for the benefit of the vendees of Kincaid, and Kincaid made a deed to the appellants. And a dispute arising between the appellants and the appellees concerning a part of the land conveyed to the appellants by metes and bounds, whereby one hundred and forty-four acres so included in the tract sold to appellants were claimed by the app>ellees as belonging to them as a part of “the loop,” the appellants, Fudge and McClintic, instituted their suit of ejectment against the said appellees, Payne and Oliver, for the recovery of the said one hundred and forty-four acres. Pend
Prom this decree an appeal was applied for and obtained from one of the judges of this court.
As has already appeared, the grounds of this interference by the chancellor with the assertion of the plaintiffs’ rights in the action at law for the land included -within the metes and bounds of their written contract and in the deed of their grantor, was that the appellees, Payne and Oliver, at the time they entered into the -written contract with their vendor, Kincaid, “fully understood, and it was so agreed between them and their vendor, Kincaid, that they bought all the lands east of the ‘ Healing Springs turnpike,’ and that the term ‘ the loop ’ included and embraced all the lands east of said turnpike.” It is not disputed that the contract between the parties, reduced to writing and duly executed at the time, contained no such statement, but quite the contrary. Hot only is there no special definition given to “the loop ” and its extent, hut any special and distinct understanding of “the loop” as covering any land to the turnpike or otherwise, by special agreement or estimation, is negatived, and the contract, as if to exclude any individual opinion or estimated extent by the parties, disregards all boundaries; provides for the sale of a tract of land of five hundred and seventy-eight acres, more or less, and generally known as “the loop.” There is no charge of fraud or surprise, but it is claimed that there was a mistake made by the appellants as to the meaning of the term “ the loop,” and it is sought to be set up and maintained by parol evidence. It is settled law that a plaintiff may introduce parol evidence to show fraud or mistake whereby a written contract fails to express the actual agreement, and to prove the modifications necessary to be made, whether such limitation consists in limiting the scope of the contract or in enlarging and extending it so as to embrace land or other subject matter which had been
It is settled that in the suits to reform a written instrument on the ground of a mutual mistake, parol evidence is always admissible to establish the fact of a mistake and in what it consisted, and to sho.w how the writing should be corrected in order to conform to the agreement which the parties actually made; this is necessary in order to prevent fraud and injustice.
The demurrer to the hill in this case was properly overruled, it being alleged therein that, according to the true understanding of the parties, the written agreement did not express the real contract of the parties. This is said of the amended hill. The original hill was defective for want of necessary parties, Kincaid, the common vendor, being omitted, and the circuit court very properly sustained the demurrer to that hill. But while it is assigned as error it cannot be reviewed here, the
Chapman, J., in the last-named case, said: “ The ordinary rule of evidence in civil actions, that the fact must be proved by a preponderance of evidence, does not apply to such a case as this. The proof that both parties intended to have the precise agreement set forth inserted in the deed, and omitted to do so by mistake, must be made beyond a reasonable doubt.” In view of this well-settled principle, we will briefly consider the evidence in this ease.
The controversy is, what did the parties intend to express by the term used in the written agreement, “the loop”? In the first place, the language of the written instrument itself is potential in favor of the plaintiff in this question of construction. It answers the question, what is meant by the term, “the loop”? In clear terms it says, "generally known as ‘the loop’”—not what we agree is “the loop.” The defendants allege that, although the written contract says the lands gene
There is another ground upon which the defendant’s claim is rendered very improbable: that is that the loop lands really did not lie wholly east nor wholly west of this turnpike, but,
In our opinion, there is no evidence upon which to vary this written agreement between the parties, and that there is no-proof of any mistake, and that this was not a case which called for equitable interference, and that the circuit court ought to-have dismissed the bill of the plaintiffs, and allowed the plaintiffs in the ejectment suit to assert their rights in the common law suit. There are other interesting questions raised and discussed by the learned counsel on both sides, but the foregoing is, we think, the true solution of the dispute involved, and it is unnecessary to prolong the discussion concerning the other questions raised. The decree of the 30th of March, 1887, giving the relief prayed for in the amended bill, is erroneous, and the same must be reversed and annulled, and a decree will be rendered here dismissing the bill of the plaintiffs.
Decree reversed.