188 Mo. 327 | Mo. | 1905
This is the second appeal in this cause. The first appeal will he found in the 176 Mo. 392, under the style of Susan B. Griffin et al. v. J. H. McIntosh.
The judgment on the first appeal was reversed and the cause remanded.
After the first cause had been appealed and before the reversal in this court, the defendant McIntosh conveyed the land to Miller, and the latter was substituted as defendant. On the trial anew in the circuit court judgment was rendered for the plaintiffs, and the defendant Miller appeals.
The action now, as then, is one in ejectment to recover two undivided eighths of certain real estate in Polk county, by plaintiffs as heirs at law and children of Oollon McIntosh and Jane his wife.
The answer admits that Mrs. Griffin and Mrs. Wingfield are two of the eight children and heirs at law of Collon McIntosh and Jane McIntosh his wife, both deceased. Defendant further alleges that said Oollon McIntosh and Jane his wife conveyed to James McIntosh, another of the children and heirs of said Collon McIntosh, the land in controversy, and that thereafter said James H. McIntosh conveyed to the defendant Miller sixty acres of said land therein; that at the time of the making of the deed from Collon McIntosh to J ames McIntosh the grantor was old,' feeble and illiterate; that by the mistake of the scrivener and without
The defendant alleges that the said deed was made in consideration of the support, care, nursing and attention given Collon McIntosh by James H. McIntosh, and that said deed was delivered in the lifetime of the grantor. He prays that the deed be reformed so as to show the true intention of the grantors by striking out the clause above stated, and that a full and perfect and complete title be declared to be vested in him.
On the former appeal it was held by this court that the said instrument was testamentary in character and did not pass a present interest in the land to the grantee and hence was not good as a deed, although all the parties thereto intended that it should take effect at the maker’s death; and that the evidence showed that in turning over the deed to the grantee, Collon McIntosh did not make an unequivocal delivery and relinquishment thereof, and the authorities were cited authorizing that conclusion.
By the answer in this case it will be observed that the defendant seeks to have said instrument reformed by striking out the testamentary condition above recited, and the sole question presented is whether the circuit court erred in refusing the reform of the instrument as prayed by the defendant. As in the former case, the evidence tends to show that, at the time of the execution of this instrument, Collon McIntosh and his wife were old people and were growing very feeble, and that James McIntosh at their request had gone to live with them and had cared for and attended the old man up to the time of his death; that Collon Me
Mr. Templeton, the official stenographer of the court, testified that he took the evidence on the former trial and made a transcript of the testimony in that case. He produced his notes of the evidence in which it appeared that the justice, Mr. Crow, testified in answer to the question, “Q. Did the old man know it .[this condition] was in there? A. -Of course he did, I read it over twice to him.” Mrs. Crane, a daughter of Collon McIntosh, testified that her father told her he had destroyed a will which he had made devising the land to her and James H. McIntosh, and had made Tom a deed to the one hundred and ten acres; that she was at her father’s house about two weeks before he
John McIntosh, another son, testified that he was at his father’s house about two weeks before he died, and stepped into the room where his brother James H. and his sister Mrs. Crane were with his father and mother just as his mother was handing James H. a deed. At the suggestion of James IT. he asked his father if he might accompany James H. to Fair Play where he could put the deed in the bank until James H. could have it recorded, and his father said that he might. The brother and he went to Fair Play and gave the deed to John Painter; that he, John, never read it until after his father’s death. There was evidence that Collon McIntosh was a man of ordinary business capacity, and could read and write. On the former appeal it was earnestly urged by counsel for James H. McIntosh that notwithstanding the instrument expressly stipulated it was not to be delivered until after the death of Collon McIntosh, the old man waived that condition and delivered it in his lifetime, and that it became effectual from the moment of its delivery. Upon the examination of the evidence on that point we held that giving the testimony its full effect it did not amount to proof of unequivocal delivery and relinquishment of all dominion over the deed, and a waiver of the plain condition therein written.
On a re-examination of the testimony heard on the first trial and reproduced in this and the additional testimony taken on the last trial we think there is no substantial difference in the evidence upon the first and the last trial, and we still adhere to our former decision that there was not an unconditional delivery of the deed in the lifetime of Collon McIntosh, and that there
It remains only to determine whether the circuit court correctly ruled that the evidence was insufficient to justify it in reforming the deed by striking out the express condition that Collon McIntosh and his wife were to hold the deed in their possession until their death after which it was to be delivered to James H. McIntosh or his heirs.
The equitable doctrine on this subject is well established. At the common law when a contract or agreement of parties was committed to writing and was complete on its face, it was* conclusively presumed that all prior negotiations were merged in the writing and parol evidence was inadmissible to contradict or vary the terms of the contract or agreement as shown by. the writing. But from time immemorial courts of chancery have exercised the right to correct written instruments which have been erroneously framed, as where it is admitted or proven that an instrument intended by both parties to be prepared in one form, has, by an undesigned insertion or omission, been prepared or executed in another. But while a court of equity will correct a mistake in a written instrument, the evidence that there has been a mistake should be clear and convincing, because in equity, as in law, the prima facie presumption is indulged that the written contract or instrument exhibits the ultimate intention, and that all previous negotiations and proposals have been abandoned. The burden, therefore, is upon the party asserting the mistake. [Parker v. Vanhoozer, 142 Mo. l. c. 627; Sweet v. Owens, 109 Mo. 1.] Moreover, the mistake must be mutual and both the agreement and the mistake must be made out by satisfactory and clear evidence.
On this point also we expressed our opinion when this cause was in the court on the former appeal that Collon McIntosh knew this condition was in this deed;
The evidence discloses a mistake of law only in that he supposed that the instrument could be delivered ■ after his death and take effect as a deed. It was not a mistake of fact on the part of the scrivener in inserting the condition, nor on the part of Collon McIntosh in adopting the suggestion of the justice.
The evidence that there was any mistake in the drawing of this instrument is too indefinite to justify a court of equity to change or reform it now. To do so would be to disturb well-settled principles of law.
The instrument must stand as it was written and acknowledged by the grantor, and the judgment must be and is affirmed.