193 Ky. 585 | Ky. Ct. App. | 1922
Affirming.
Daniel R. Johnson owned a farm on Left Beaver creek in' Floyd county. In the year 1904 he sold the coal and other minerals to the Northern Coal & Coke Company. On February 26, 1913, he' sold the surface to the Beaver Creek Fuel Company for $10,000.00, and he and his wife executed a written contract, by which they bound themselves later on to execute a deed conveying the property to the purchaser. The contract contained the following provision: “Grantor reserves about one acre around graveyard for a residence.” On May 15, 1913, Johnson and wife complied with the written contract by executing a deed which described the entire farm and then contained the following provision: “There is excluded from the above described boundary the following described tract around a graveyard for a residence.” Then follows an accurate description of the property reserved. . .
The Elkhorn Gas Coal Mining Company leased the minerals in this and other lands, and then purchased the surface tract from the Beaver Creek Fhel Company for the purpose of conducting’ a coal mining plant and laying out a mining town. Johnson was living on the excepted land at the time the contract and deed were executed, and was conducting a grocery about one hundred yards distant from the lot. He continued to live on the place in the old residence for three or four years, and then vacated the premises and moved to Pike county. Before leaving the premises lie and his lessee, Bentley & Johnson Mercantile Company, erected a storehouse and two or three dwelling houses on the lot excepted. They after-wards sold the store ancl lot to the Bentley & Johnson Mercantile Company.
This suit was. brought by the Elkhorn G-as Coal Mining Company to enjoin Johnson and wife and Bentley & Johnson Mercantile Company from using the excepted lot for any purpose other than a residence or graveyard. The defendants pleaded that the provision of the deed limiting the use of the excepted lot for residence purposes only was inserted by fraud and mistake. Plaintiff denied fraud or mistake and further pleaded that it was an innocent purchaser for value. On final hearing the relief prayed for was granted and the defendants appeal.
On the other hand, Daniel R. Johnson says that the trade was made by his wife. The understanding between them and Messrs. Hite and Gibson was that he retain the excepted lot for any purpose that he wanted to use it for. He was then in the mercantile business and when Mr. Hite inquired, “What is your idea for keeping so much land here?” he told Mr. Hite that he could not malee out on less if lie sold goods there. He told them at the time that if he sold the rest of his land, he had no land to farm and he was going into the goods business.. At that time Mr. Hite said that if the company could not fetch goods there and sell them cheaper than anybody
We have ruled in a number of cases that where a deed conveying land, reserves, excepts, or excludes a portion thereof for a particular purpose, the grantor cannot use the land for any other purpose. Brown v. Anderson, 88 Ky. 577, 11 S. W. 607; Damron v. Justice, 162 Ky. 101, 172 S. W. 120; Johnson v. Elkhorn Gas Coal Mining Company, 176 Ky. 676, 197 S. W. 409. In the case of Brown v. Anderson, supra, the deed contained the clause, “excepting and reserving one-half acre of land of said tract, being the old family graveyard of the grantor, together with the right of way to said graveyard.” It was held that the tract excepted could be used for no other
But it is insisted that the deed should be reformed on the ground of fraud or mistake. To reform an executed contract on the ground of fraud or mistake, the evidence must be clear and convincing, or such as to establish the fraud or mistake beyond reasonable controversy. Atha v. Webster, 181 Ky. 581, 205 S. W. 598; Johnson v. Gadberry, 174 Ky. 62, 191 S. W. 865. It was not shown that either Gibson or Hite, who were present when the contract was executed, made any false statement as to the provisions of the contract, or did or said anything to prevent the Johnsons from reading it or otherwise learning its contents. On the contrary, it is admitted that the contract was read to the Johnsons as written, ahcl then signed by them. Nor was there any evidence that Salisbury, the notary public who took the acknowledgment to the deed, did or said anything calculated to deceive the Johnsons. He merely prepared the deed in accordance with the contract and then read the deed to the Johnsons. Johnson called attention to the exclusion and was more particular about reading the exclusion than anything else. When we reflect that the statements of Johnson and wife are contradicted by Hite and Gibson, that Johnson, though au able and experienced business man, signed the contract after being acquainted with all its terms, that about three months later he signed the deed without making any claim that either the original contract or the deed itself did not represent the true agreement, we are
Judgment affirmed.