15 Mo. 160 | Mo. | 1851
delivered the opinion of the court.
Fournier, an old inhabitant of Carodelet, conveyed all his property, real and persona!, to his son-in-law, Denoyer; the only consideration of the conveyance being the covenant of the son-in-law, contained in the same deed, by which he bound himself to maintain his father-in-law and mother-in-law “during their lives, with good and sufficient food and clothing, in sickness and in health; furnish them with a horse and cart, and give them at all times free access to the property conveyed for their own use so long as they might live, and that during that time he would not convey the property to any other person.”
A year after this conveyance, the parties executed another instrument, in which they recite the substance of the previous conveyance, and then say, “which said deed and the covenants therein contained, the said parties find to operate to their prejudice and against their interest, in consideration whereof, as well as for divers other good causes them thereunto moving, the said Francis Denoyer, on his part, hereby abandons, relinquishes, and quits claim to all the property in the aforesaid deed described, unto the said Francis Fournier, and the said Francis and Josette his wife do hereby release and discharge the said Denoyer from the further performance of each and every one of the covenants entered into in the aforesaid deed.”
The father-in-law, on the next day after this last instrument was executed, conveyed a part of the same property, but net the property now in question, to his son-in-law Denoyer, by deed with general warranty. Fournier, the father-in-law, continued in possession of the premises in
The plaintiff claims by deed from Denoyer, the son-in-law, made more than nineteen years after the instrument by which they attempted to rescind the first conveyance; and the whole force of the plaintiff’s claim is, that there are no words of inheritance in the reconveyance from Denoyer to Fournier, and therefore Denoyer retained the reversion after a life estate conveyed to Fournier.
It was plainly the intention of the parties, when the first deed was executed, that the use of the property should be enjoyed by both Fournier and his wife, during their lives, for so is the covenant of Denoyer in that deed. If the reconveyance, by Denoyer, only vested in Fournier a life estate in the property, it was less than the parties supposed was already in Fournier and his wife, and so, according to this construction of the instrument, Denoyer being entirely discharged from his covenants by plain and effectual words, would get the fee simple in the whole property after the death of Fournier for no consideration whatever. It is the province of a court to enforce the contracts and conveyances of the parties, and not to make or alter them; but it is the duty of the court to enforce the contract which was really made, and when by mistake that contract is not expressed in such terms as to have the force and effect that the parties intended it should have, then it is the clear duty of the court to correct the mistake in the instrument. The supreme court of the United States in Hunt vs. Rousmaniere’s adm’r, 1 Peters 13 say, “there are certain principles of equity applicable to this question, which as general principles we hold to be incontrovertible. The first is, that where an instrument is drawn and executed, which professes or is intended to carry into execution an agreement, .whether in writing or by parol, previously entered into, but which by mistake of the draftsman, either as to fact or law, does not fulfil or which violates the manifest intention of the parties to the agreement, equity will correct the mistake, so as to produce a conformity of the instrument to the agreement.”
In the present case, there is no necessity for going out of the instrument executed between these parties, in order to ascertain their intention, in making the second conveyance and the agreement between them which the instrument was designed to execute. They refer to the first conveyance and recite its provisions. It had two parts — the first, the conveyance, to Denoyer of all Fournier’s property — the second, the covenants of Denoyer to support Fournier and wife, &c. They say in ihe second instrumentas the consideration upon which it was made that
If words of inheritance were necessary in order to re-iovest Fournier' with the fee simple of the land which had been conveyed to Denoyer. -then such words were omited by mistake. It is not necessary, in or des to establish a mistake in an instrument that it shall be shown that particular words were agreed upon by the parties as words to be inserted in the instrument. It is sufficient that tire parties had agreed to accomplish ‘a particular object by the instrument to be executed, and that, the instrument as executed is insufficient to effectuate their intention. .
The power of a court of equity to reform an Instrument, which by reason of a mistake fails to execute the intention of the parties is unquestionable. It is not material, whether the instrument is an executory or an executed agreement; nor is it material whether the proceeding is directly by bill to correct the mistake or the mistake is set up in the answey by way of defence. 2 John. R. 685; 5 John. C. R. 224; ib. 184; 10 Conn. 244; 1 John. C. R. 607; 6 Blackf. 448, 1 Dev. Eq. Reports 379.
Although it is said, that the evidence required to prove a mistake when it is denied must be as satisfactorily as if the mistake were admitted, yet this and similar remarks of judges, however distinguished form no rule of Jaw to direct courts in dispensing justice. When the mind of a judge is entirely convinced upon any disputed question, whether of Fact or law, he is bound to act upon the conviction.
In the present case the evidence is stronger than the testimony of witnesses. It is the language of the parties themselves, in the very instruments executed, and in which the mistake is alleged to exist.
