281 P. 749 | Mont. | 1929
The only real or serious question involved is relative to the power of the court to reform a deed made by a father to his daughter. It was urged in the lower court, and will be urged here, that the deed in question was a voluntary conveyance. In fact, it was upon this one proposition that the court below rendered judgment against the appellant.
The general rule usually is that a purely voluntary deed may not be reformed because it is supported by no consideration whatsoever. (34 Cyc. 928; 23 R.C.L. 344.) The general rule is supported, for the most part, by early southern and English decisions. The modern tendency, even in the southern and eastern states, is to relax the general rule as altogether too harsh. (Note, 65 Am. St. Rep., at 521; see, also, Parker v.Hardisty,
But even assuming that the rigid general rule is still in effect, the appellant here comes within the scope of many of the recognized exceptions to and qualifications of such rule. In the first place, the consideration need not be a legal one. All agreements are based upon either a valuable consideration, a mere voluntary bounty or the performance of a moral duty. The first above is binding in law. The second is, strictly *46
speaking, no consideration at all. The third constitutes a meritorious or imperfect consideration, which will be enforced in equity. (Powell v. Morisey,
All courts recognize the proposition that any valuable consideration, no matter how slight, is sufficient to prevent the instrument from being a voluntary conveyance. (23 R.C.L. 325; 34 Cyc. 929; Robertson v. Melville,
If a deed is made pursuant to a family settlement and agreement, such as appears in this case, there is always sufficient consideration present to reform a deed. (12 Am. Eng. Ency. of Law, 2d ed., 875; Harvey v. Hand,
The declarations of Quinlan to the witness Conley made subsequent to April 16, 1919, the date of the deed in question, could only be admissible in evidence upon the theory that the forty in question was still his property, and was not conveyed by the deed, otherwise the statements are not declarations against interest. In other words, if the forty-acre tract should be passed by the deed and John Quinlan thus having parted with his title, then he was no longer interested in the land and his declarations thereafter would not affect his own financial interest. It has never been held that the declarations of a deceased person are admissible under such circumstances. (Dick
v. King,
All the evidence in this case shows beyond dispute that there was absolutely no consideration for the deed in question here, and that the deed from John Quinlan to the appellant in this action was in fact, and was intended by the said Quinlan, to be a gift of the property involved, that is to say, a gift of the real estate. Such being the case, if Quinlan were alive now, and chose to resist this action, it could not be urged that plaintiff would have any legal or equitable right to compel him to deed to her the land alleged to have been omitted from the deed in question. The respondents here, being the heirs of John Quinlan, have the same rights as the deceased Quinlan, and that if appellant would have no right to have the deed reformed as against Quinlan, then appellant has no right to have the deed reformed now as against these respondents. The appellant here is grantee in a voluntary deed, and is therefore not entitled to have the deed reformed in equity after the grantor's death, as against the grantor's heirs at law. (Ferguson v. Ash,
The material facts are undisputed. The evidence, briefly summarized, shows: That plaintiff and the defendants are sisters and the only living issue and sole heirs of John Quinlan, who died intestate on December 4, 1920; that for a number of years prior to his death he resided with plaintiff and her husband on a tract of land consisting of 237.81 acres owned by Quinlan until April 16, 1919, at which time he conveyed all but forty acres by deed to plaintiff; that defendant Annie Lowery and her husband for many years prior to 1919 resided on another tract of land consisting of 160 acres, hereinafter referred to as the Lowery tract, also owned by Quinlan; and defendant Nellie Mero, with her husband, for many years prior to 1919 resided on a third tract of land belonging to Quinlan, consisting of 240 acres, hereinafter referred to as the Mero tract. On April 16, 1919, Quinlan by deed conveyed the Lowery tract to defendant Annie Lowery and the Mero tract to defendant Nellie Mero; the three tracts embraced all the land owned by Quinlan at the time of making the deeds. The forty-acre tract in question here is grazing land and borders on the south side of the land actually conveyed by the deed to plaintiff; plaintiff and her husband used such tract together with that conveyed to her ever since they were married in 1905. They had paid annual crop rental to Quinlan prior to the making of the deed but none thereafter; the forty acres were used for grazing and at times some hay was cut thereon. Quinlan was unable to read or write. After his death Peter Laundreville, husband of plaintiff, was appointed administrator of his estate; the estate was administered upon, an order *50 of distribution made, and a final discharge of the administrator obtained, all on the supposition that deceased owned some personal property but no real estate. The decree of distribution contained the usual clause decreeing to the parties here, share and share alike, subsequently discovered property of the decedent, if any.
In 1920 Frank Conley attempted to buy the forty acres in question from Quinlan and was advised by him that he had deeded all his land away and that this forty belonged to Laundreville. Peter Laundreville testified that deceased, before making the deeds, told him he was going to divide up his property and give "everybody [meaning thereby his three daughters] whatever tract they were living on"; that thereafter Quinlan went to the office of S.P. Wilson to have the deeds prepared; Quinlan at that time was eighty-nine years of age; Laundreville was present when the deeds were executed; they were all made simultaneously; subsequently they were recorded and delivered. There is a dispute as to who did the recording and delivering, but we deem that immaterial. The forty-acre tract in question, along with the land covered by the deed to plaintiff, was acquired by Quinlan from the same source and by one deed, and was acquired from a source separate and distinct from that of the Mero and Lowery tracts, and it was all considered one farm occupied since 1905 by plaintiff and her husband. Plaintiff paid all taxes on the forty acres accruing subsequent to the execution of the deeds. Quinlan in his lifetime several times told Peter Laundreville that there were 240 acres in the tract conveyed to plaintiff, and remarked to him after the deeds were made that "he didn't have an acre of land to his name." The deed recites a consideration of $10, but evidence was introduced without objection that no money consideration was given. Since the deeds were made, plaintiff has put in a new fence on the west side of the forty-acre tract and on part of the south side and has used it ever since as a part of her farm. The fact that the deed to plaintiff did not include the forty acres was not discovered until about June 1, 1927. *51
In the light of this uncontradicted evidence plaintiff contends that the court erred in not reforming the deed so as to include the forty acres in question and thus give effect to the intention of the grantor. Defendants contend that, since the deed was purely voluntary, a court of equity may not grant relief by reformation.
The rule contended for by defendants is stated in 22 Cal. Jur., page 714, section 5, as follows: "In harmony with the policy of equity to correct mistakes only in furtherance of justice, it is a general rule that courts will not reform purely voluntary conveyances, unless all the parties consent." This rule was given recognition in Johnson v. Austin,
The rule has its own limitations and exceptions. It was originally established in litigation between the donee and the donor; the universal rule being that the courts will not reform a voluntary deed in an action brought by the grantee against the grantor. The reason for the rule is that when one accepts the bounty of another he may not be heard to say, as against the donor, that something else should have been given. (Robertson
v. Melville,
Does the reason for this rule apply to the heirs of the grantor? Does the jurisdiction of a court of equity to reform a voluntary conveyance, so as to express the intention of the donor, in a suit by the grantee against the heirs of the grantor, depend upon the consent of the heirs? Some courts have answered in the affirmative. Among them may be cited: Willey v. Hodge,
It should be observed, however, that the facts in the EnosCase differ materially from those here involved. In that case the heirs opposing the reformation were unprovided for, and this fact seems to have had some weight with the court, for it said: "This, therefore, is an action by a grantee under a voluntary defective conveyance to obtain the aid of a court of equity to correct and reform the conveyance as against an heir at law who is unprovided for by deceased." This seems also to have been the basis of the decision in the Triesback Case.
The reason for the rule that prohibits equity from reforming a voluntary deed as against the donor does not exist in favor of his heirs. This conclusion is not without sustaining authority. Thus in McMechan v. Warburton, 1 Ch. Div. 435, 1896 Irish Reports, volume 1, page 435, it was said: "It was contended by the defendant Warburton that, as this was a voluntary deed, this court cannot interfere to rectify it in favor of volunteers. The elementary principle of this court that it will not interfere to enforce specific performance of an incomplete voluntary agreement, or to rectify an erroneous voluntary disposition of property in favor of a volunteer, is subject to this exception: that after the death of the donor it will interfere to rectify a disposition which is clearly proved to have, through mistake, failed to carry out the proved intention. The principle is, I think, more correctly stated by confining it to this, that the court will not rectify a voluntary disposition against the donor. That it will do so in favor of a donor is shown by the case ofLackersteen v. Lackersteen, 30 L.J. *53 Ch. (n.s.) 5, where a voluntary settlement was rectified by Wood, V.C., at the instance of the settlor. This explains the view taken by Romilly, M.R., in Lister v. Hodgson, L.R. 4 Eq. 34, where he stated the exception I have mentioned in case of a deceased donor, that upon clear proof of the intention of the donor, which, by a mistake, was not correctly carried out by the instrument of gift according to such intention, this court will interfere to correct the mistake, and thus act in favor of the intention. If the donor were living, it would have, of course, been competent for him to consent to such rectification or to dissent from it. If the latter, it could not be reformed against his will, for a volunteer must take the gift as he finds it; but after his death, and in absence of proof of any change of intention, it cannot be assumed that he would have dissented, and it might even be presumed that he would not dissent."
The same question under similar facts was before the supreme court of Mississippi, in Spencer v. Spencer,
Mr. Justice Gates, speaking for the court in McCabe v.O'Conner,
The supreme court of South Carolina refused to adhere to the doctrine that a voluntary conveyance may not be reformed as against the heirs of the grantor, in the case of Lawrence v.Clark,
That relief by reformation is proper as against the heirs of the donor is also implied in the decision in the case of Gibson
v. Johnson,
"When the reason of a rule ceases, so should the rule itself." (Sec. 8739, Rev. Codes 1921.)
The reason for the rule preventing a court of equity from reforming voluntary conveyances as against the grantor does not extend to the heirs, and we decline to extend the rule in their favor. Each case must be governed by its own facts and circumstances. If there is equity in plaintiff's case as against the rights asserted by the defendants, a reformation should be decreed. If plaintiff's case is lacking in the elements that go to move the conscience of a court of equity, relief should be denied on that ground, but not for want of jurisdiction in the court because of the voluntary character of the conveyance.
Here the conveyance was fully executed; the plaintiff retained possession of the property and made some improvements thereon; the defendants have in no way been injured; according to the record they have received everything that the father intended they should have; no rights of innocent third parties have intervened. Under the record here presented, the father would doubtless have desired to make the correction sought by this action, had he learned of the mistake in his lifetime. Under the facts of this case, a court of equity should in furtherance of justice grant relief by reformation.
Defendants contend, also, that the mistake here in question was not a mutual mistake of the parties within the meaning of section 8726, Revised Codes of 1921. A like question, under a similar statute, was presented to the supreme court of Georgia, inCrockett v. Crockett,
Section 7531, Revised Codes of 1921, provides: "When, through fraud, mistake, or accident, a written contract fails to express the real intention of the parties, such intention is to be regarded, and the erroneous parts of the writing disregarded."
In so far as voluntary conveyances are concerned, the contracts are by their very nature unilateral. They are lacking in mutuality. But we think a court of equity has inherent power in a proper case to grant relief by reformation of a voluntary conveyance so as to have the deed express the intention of the grantor, even though, strictly speaking, the mistake is not mutual.
Contention is also made that the evidence given by Frank Conley to the effect that decedent, after the making of the deeds, told him that he had deeded all his land away, and that the forty acres in question belonged to Laundreville, was inadmissible as hearsay. This evidence was admissible by reason of subdivision 4, section 10531, Revised Codes 1921, which makes admissible "the act or declaration of a deceased person done or made against his interest in respect to his *57 real property." And declarations of a decedent against his pecuniary interest are also admissible against his successors in interest. (Sec. 10514, Id.)
Under defendants' theory of the case, the decedent, when he made the statement, was and at all times since until his death had been the owner of this forty-acre tract. The statement was admissible as some evidence tending to show the mistake here asserted and to show the real intent of the grantor. (McCabe v.O'Conner, supra.)
We recognize the universal rule that, in order to grant relief by reformation on the ground of mistake, the proof must be clear and convincing. The evidence here meets that requirement. "That the trial court may not disregard uncontroverted credible evidence is fundamental." (Sylvain v. Page,
The evidence clearly preponderates against the decision of the trial court, even though some of the plaintiff's witnesses were contradicted on collateral matters.
The trial court erred in entering judgment sustaining defendants' contention and denying the relief sought by plaintiff.
The judgment is reversed, and the cause remanded to the district court of Powell county, with direction to enter judgment for the plaintiff.
MR. CHIEF JUSTICE CALLAWAY and ASSOCIATE JUSTICES MATTHEWS, GALEN and FORD concur. *58