200 Ky. 760 | Ky. Ct. App. | 1923
Opinion of the Court by
Reversing.
The appellee and defendant below, Westwood Real Estate and Development Company, owned some land near the city of Ashland which it purchased from different parties. It was platted into lots and streets and put upon the market. One of the parcels composing the plat was purchased by defendant from Adolph Henneman, which had been improved by the latter constructing a residence, some outbuildings and a well on it and a fence around it. On the plat made by defendant the Henneman parcel was in the corner of an alley running north and south and Wheatly street running practically east and west, as we gather from the plat, and it, as fenced and as formerly owned and occupied by Henneman, extended along Wheatly street 140.8 feet and along the alley 163 feet to another alley along its south line. There was an apple tree in the northeast comer of the Henneman lot and the recorded plat of defendant included other land belonging to it and purchased from other parties adjoining the Henneman lot on the east. The plat divided the ground on the south side of Wheatly street into lots 40 feet wide and extending from that street to the alley south of it, and there was platted a 40 foot lot off the east part of the Henneman lot, and known in this record as lot number 116, with the numbers increasing consecutively as the plat extended east.
On May 16, 1920, Thompson and wife sold and conveyed the property they purchased to the appellant and plaintiff below, B. C. Irwin, and the description in his
That a deed may be reformed by including land not described therein or excluding land described in it upon the ground that it was omitted or included, as the case may be, by mutual mistake or mistake of one of the parties and fraud of the other, is a well settled doctrine in equity jurisprudence and has been uniformly recognized and applied by this court in numerous cases. Two comparatively recent ones, and in which many other prior ones are cited, are Scott v. Spurr, 169 Ky. 575, and Lamastus, et al. v. Morgan’s Committee, et al., 178 Ky. 805. The relief does not proceed upon the theory that a written contract may be altered or modified by extraneous parol testimony, but upon the theory that equity will conform a written contract, which fails to express the intention of the parties for the reasons stated above, to the actual one entered into by them. In order, however, to obtain the relief the proof of the mutual mistake or fraud must be clear and convincing, since its purpose is to overcome the agreement as expressed in the writing. But the “clear and convincing proof” required before the relief be given, is not confined alone to the express statements of witnesses, but may also be developed by “the character of the testimony, the coherency of the entire case, the documents, circumstances and facts which are proven.” Scott case, supra.
In this case Thompson and wife testified that Mr. Wheatly, the president of defendant, showed them the lot which they purchased and pointed out on the ground its boundaries, which he said included all of the Henneman lot as then enclosed, and told them that the north
The rule requiring “clear and convincing proof” necessarily does not mean that there should be no contrariety in the proof, for if it did the occasions for the application of the remedy would be rare indeed. We think the testimony in this ease shows, as measured by that rule, either a mutual mistake in omitting from the Thompson deed lot number 116 on the plat, or that it was omitted through a mistake on the part of Thompson and wife and fraud on the part of Wheatly. That being true, plaintiff was entitled to a reformation of his deed as prayed in his petition, and the court erred in declining to do so.
The deed to Wellman of lot number 116 was clearly champertous and void, because that lot was at the time enclosed and in the adverse possession of Thompson. Moreover, if it had not been so, Wellman was aware of the mistake and of the right of Thompson to reform his deed at the time of his purchase, and would be subject to Thompson’s equities. He was not, however, put in possession of that lot but of lot number 117, which, as we have said, was prior thereto conveyed to Mrs. Montgomery. He was made a party defendant in this action but did not answer nor was there any judgment fixing the rights be
"Wherefore, the judgment is reversed with directions to enter a decree reforming the deed according to the prayer of the petition and for further proceedings consistent with this opinion.