99 P. 719 | Cal. Ct. App. | 1908
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *504 The action was brought to reform a deed. Plaintiff alleges that on the second day of November, 1893, defendant was the owner of certain lands in Mendocino county, consisting of two hundred acres, which are described in paragraph 1 of the complaint; that on said date the defendant agreed to sell, and did sell, said real property to one Mrs. Louise D. Milks; "that on the said 2nd day of November, 1893, the said defendant made, executed and delivered his deed of conveyance intending to convey and describe the lands hereinbefore in paragraph 1 of this complaint set forth and described and no other. And said Mrs. Louise D. Milks received said deed fully believing that said deed conveyed the lands which she had purchased, to-wit: the real property described in paragraph 1 of this complaint and no other. That by a mistake of both parties to said instrument the said deed of conveyance did not truly or correctly describe the premises sold and intended to be described therein but said deed of conveyance described certain of the property intended to be conveyed but failed to include within the description certain other lands intended to be described therein." Then follows a copy of the conveyance as it was executed. The manner in which the mistake occurred is also fully set forth. It was due to the carelessness of the scrivener in writing the word "of" instead of "and" in the following portion of the description: "N. 1/2 of the S.E. 1/4and the S.E. 1/4 of the N.E. 1/4 of section 21," thereby causing to be conveyed one hundred and fifteen acres less than was intended by the parties. "That thereafter, to-wit, on the 11th day of December, 1905, the said Mrs. Louise D. Milks had not discovered the said mistake and on the said date for a valuable consideration sold to plaintiff herein the lands hereinbefore in paragraph 1 of this complaint described. That in making out and executing the deed of conveyance of said lands by the said Mrs. Louise D. Milks *505 to this plaintiff, the scrivener drafting said instrument used the deed of conveyance containing the erroneous description" from defendant to the said Mrs. Louise D. Milks. The same mistake was made, the parties believing that the land intended to be conveyed was properly described. The plaintiff did not discover said mistake until about the first of November, 1906. Desiring to sell said property he had an abstract prepared for the intending purchaser. The attorney who examined said abstract noticed the mistake and called it to the attention of plaintiff, who had up to that time fully believed that the aforesaid deeds correctly and truly described the lands actually purchased and paid for and intended to be conveyed by said grantors. The plaintiff immediately demanded of defendant Walton and of the said Mrs. Louise D. Milks that each of them execute to plaintiff a new deed to said premises correcting said mistake. Mrs. Milks did so but "the defendant refused and still refuses to either make, execute or deliver a new or corrected deed to said premises and refused and refuses in any manner to correct said mistake." It is expressly averred that the defendant accepted payment in full for all the land intended and believed to be conveyed by said deed of November 2, 1893.
Defendant denied the material averments of the complaint, pleaded the statute of limitations, and filed a cross-complaint to quiet his title against plaintiff. The findings were against defendant, and it was adjudged that "that certain deed of conveyance made, executed and delivered on the 2nd day of November, 1893, by Benson Walton to Louise D. Milks . . . be and the same is hereby reformed in the following particular, to-wit: By causing the description contained in said deed which reads therein N. 1/2 of SE. 1/4 of SE. 1/4 of NE. 1/4 of Section 21, Township 22 N., R. 17 W., M. D. M., to be reformed so as to read N. 1/2 of SE. 1/4 and SE. 1/4 of NE. 1/4 of Section 21, Township 22 N., R. 17 W., M.D.M. . . . That said reformation and correction of said description to be made and to take effect as of the date November 2nd, 1893."
As claimed and stated by respondent, the evidence, without conflict, shows: "1. That the appellant Walton sold the full quota of land misdescribed in the deed and received payment in full. 2. That by mistake of the scrivener the deed was so drawn that Walton conveyed five acres when he actually intended to convey one hundred and twenty acres for which he was paid. (It may be added that 80 additional acres are described in another portion of the deed.) 3. That Mrs. *506 Milks, to whom Walton conveyed the property, sold to plaintiff all the land Walton had intended to convey and that in copying the deed the same mistake was made. 4. That Milks recognized the mistake and corrected it. 5. That appellant Walton, while admitting that he had sold the entire tract and received payment in full therefor and acknowledging that he had relinquished all claim to the land and did not know of the mistake in the deed until a new deed was demanded of him just before the commencement of the action, refused to make a new deed and determined to make an attempt to hold the land regardless of the fact that he had sold it and received full payment therefor. 6. That the plaintiff and his predecessor in interest knew nothing of the mistake until a few days before the action was brought."
The further facts germane to the issues raised by the cross-complaint and plaintiff's answer thereto are that the whole of said tract intended to be conveyed as aforesaid was properly assessed to said Mrs. Milks from 1893 to 1905, inclusive, and the taxes were paid by her, and for the year 1906 it was assessed to, and the taxes were paid by, plaintiff, and during all this time said parties claimed to be the owners of all of said property and exercised the acts of ownership over said premises usually and commonly exercised by all owners of such property, it being unimproved timber land.
From the foregoing it is manifest that a judgment in favor of defendant would be clearly opposed to the generally recognized principles of equity and fair dealing. How he could hope to have it adjudged by the court, as pretentiously set forth in his cross-complaint, "that he is and at all the times herein mentioned has been the owner and seised in fee, in the possession and entitled to the possession of the real property" (describing that omitted from the deed to Milks) and "that the plaintiff herein claims some estate, right, title or interest in or to the said land adverse to this defendant, but that such claim is without right and unjust and the said plaintiff has no right, title, estate or interest whatever in or to said above described real property or in or to any part or parcel thereof," is almost incredible in view of his own testimony that "On November 2, 1893, I agreed to sell to Mrs. Louise D. Milks 200 acres of land for $800.00. I intended to convey to her all the land that I owned in that part of the country. I suppose there is a mistake in the description contained in the deed made and executed by me to Mrs. Milks. After I signed the deed I believed that I had deeded away my entire *507 200 acres. I commenced to claim those lands last fall before this suit was commenced. I made no explanation of my claim or nothing about it. I first discovered that I had made a mistake in the deed to Mrs. Milks since I was asked to make a new deed. Prior to that time I thought the land belonged to Mrs. Milks. I never lived there, but slept there several nights some years ago while out hunting." Out of his own mouth, therefore, assurance is furnished that he is not the owner, not in the possession, nor entitled to the possession of said land, and has not been since November 2, 1893, and furthermore that the claim of plaintiff is not "unjust" but entirely equitable, and one that should be enforced.
But, as we understand appellant, his only serious contention is that plaintiff should not have prevailed, for the reason that his cause of action is barred by the statute of limitations, it being asserted that the action is for the recovery of real property and barred by the provisions of section
This proceeding is authorized by section
The time within which an action for relief on the ground of fraud or mistake must be brought is three years, as prescribed by subdivision 4 of section
In Breen v. Donnelly,
The other cases cited by respondent are in line with the foregoing.
But it is claimed that the mistake should have been discovered sooner by plaintiff and his predecessor in interest, and therefore it must be deemed in law to have been so discovered. But the correct rule in reference to this phase of the question is stated in Tarke v. Bingham,
But appellant claims that it has been held in some recent cases that an action like this is one for the recovery of real property, and, where plaintiff is not in actual possession, must be brought within five years from the time the deed containing the mistake was executed. It will be seen, however, upon an examination that those cases represent a commendable desire upon the part of the appellate courts to enlarge as far as it can be done the statute of limitations in the interests of *510
justice, and they were not primarily for the reformation of written instruments, but they involved the features of an action in ejectment or to quiet title. In Goodnow v. Parker,
In Murphy v. Crowley,
The case of Union Ice Co. v. Doyle,
It is true that in the case at bar a part of the prayer is "that it be adjudged that the plaintiff is the owner of the lands described in paragraph 1 of this complaint, and that the defendant be enjoined from asserting any right to any of the lands contained in said paragraph," but this goes beyond the obvious scheme and purpose of the complaint and was properly disregarded by the trial court.
The cause of plaintiff is just, and should not be defeated by a strict and technical application of the statute of limitations in behalf of one whose claim must be held intolerable in a court of equity.
Other questions discussed by counsel have been considered, but the foregoing is decisive of the controversy.
The judgment and the order denying the motion for a new trial are affirmed.
Chipman, P. J., and Hart, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on February 1, 1909.