40 Wash. 698 | Wash. | 1905
Appellants were the owners of two lots in Wetherwax & Benn’s addition to the city of Aberdeen, which lots were each fifty by one hundred and thirty feet, the greater length being north and south. One of these lots bordered on the west side of G street, and was adjoined by the other upon the west. Along the end of these two lots on the north was an alley. This alley and G street were paved, and the sidewalk upon said street marked the eastern boundary line of said property. Prior to the events which gave rise to this action, these appellants had sold to one Curtis a parcel of land thirty-two feet in width off from the south end of their two lots; and another strip of land thirty-two feet wide and adjoining that of Curtis upon the north, they had sold to one Kaufman.
TJpon the north thirty-four feet of these lots adjoining and to the south of the alley forming the north boundary of the entire tract, these appellants owned a house in which they made their home. Between this parcel and that sold to Kaufman there was a strip of land extending across the two lots and having a frontage of thirty-two feet upon said G street. This parcel of land with a house thereupon was sold and conveyed by appellants to respondents. Between the house thus sold and the house occupied by appellants, there was a board sidewalk about five feet wide, extending from G street to a point opposite the rear of said two houses, and which was used by the occupants of both. The difficulty causing this action arose from the question as to where appellants represented the division line to be between their property and that sold to respondents.
The latter claim that when they purchased the property, appellants informed them that the north line of the property they were buying was indicated by the north edge of the sidewalk lying between the two houses. Respondent Dan Heffron and his brother and a man by the name of- Hilts testify that they went to look at the property before the sale
The deed from appellants to respondents described this property as “the southerly thirty-two feet of the northerly sixty-six feet of lots 11 and 12, block 3,” etc. This is an accurate description of the thirty-two feet lying immediately north of the property theretofore sold to Kaufman, and would leave appellants yet owning thirty-four feet off from the north-end of said lots and adjoining the alley aforementioned. Respondents brought this action to reform said deed by having it describe the property conveyed as “the southerly thirty-two feet of the northerly sixty-three feet three inches of lots 11 and 12,” etc. It will be seen that the effect of this would be to place the northerly line of respondents’ property two feet and nine inches further to the north, where it would follow the northerly edge of said sidewalk. The case was tried before the court without a jury, and a decree and judgment was entered directing the reformation of the deed in accordance with the prayer of respondents’ complaint, and awarding damages in the sum of $7. From this an appeal is taken.
Ordinarily, before a court will reform a written instrument upon the ground of mistake^ the evidence must be clear
The trial court made no finding of fraud, but found that appellants were mistaken as to where the line ran between their property and that sold to respondents, and based its decree upon this theory. But the fact, as before stated, that appellants had caused this property to be surveyed and the comers and division lines to be theretofore marked upon the sidewalk, shows, to our minds,.conclusively that they were not mistaken as to where their line was, and we can find no motive for appellants representing the line to be to the north of where it actually was. Where testimony is so absolutely irreconcilable as it is in this case, it is not an easy task for a court to determine what may be the exact truth of the matter. But in a case of this kind, where the reformation of a written instrument is asked, the law places upon the party seeking such modification the burden of establishing his contention by the clear preponderance of the evidence. In view of the contradictory character of the testimony, and of the further fact that, in our opinion, the undisputed facts in the case tend to corroborate the testimony of appellants more than that of respondents, we are led to believe that the honorable trial court was in error in its findings favorable to respondents.
The judgment appealed from is reversed, and the cause remanded with instructions to dimiss the action.
Mount, C. J., Crow, Dunbar, Hadley, Fullerton, and Rudkin, JJ., concur.