24 Kan. 231 | Kan. | 1880
The opinion of the court was delivered by
In this action, the plaintiff below, Sarah A. Wills, filed her petition in the district court, setting forth the following, among other facts: From September 15, 1872, up to December 14,1878, the plaintiff and Thomas H. Wills, were husband and wife, at which latter date, Wills died intestate, leaving the plaintiff and the defendants, Urana E. Leonard; W. L. Wills and Enola J. Grass, children of the intestate, as his sole and only heirs. During the existence of the marriage relation between the plaintiff and said Thomas
The plaintiff also states in terms in her petition, “that, at the time of the execution and acknowledgment of said deed, said Wills did not know the number of the block in said city of Independence, in which said lots are situated, and then and there instructed the notary who took said acknowledgment, to ascertain and insert the number of said block in which said lots are situated, but that the said notary negligently and carelessly neglected and omitted to do the same, and still neglects and refuses to do the same.” The plaintiff also states in her petition, that the defendants are now claiming to own an undivided one-half of said lots as the heirs of said Thomas H. Wills. The plaintiff prays in her petition that said description be reformed by inserting the number of the block and the name of the city in which said lots are
We. suppose that the only question in the case is, whether the plaintiff is entitled to any relief under the circumstances of this case. That is, is she entitled, under the circumstances, and in any manner, to have her claim to said land adjudicated and declared to be superior and paramount to that of the defendants? Is she entitled to have her said deed of conveyance reformed as she desires? Or is she entitled to a specific performance of the original parol contract entered into between herself and husband in pursuance of which contract said deed was intended to be executed, and of which contract said deed contains nearly all the terms, and is nearly full and complete evidence? Or is she entitled to.quiet her title and possession to the property as against the defendants, and to have them perpetually enjoined from ever interfering with her title or possession ? If she is entitled to any one of these remedies, we suppose the court below ruled correctly in overruling said demurrer. Is she entitled to any one of them? It would seem that she is not entitled to have her deed reformed; for the defect therein cdntained is not from accident or mistake, but from intention, with a full knowledge of all the facts. That is, the parties did not know, at the time said deed was executed, what the number of the block in which said lots are situated is, so they intentionally left said number blank, with the understanding that the blank should afterward be filled up by the notary public who took the acknowledgment of the grantor to the execution of the deed. As we understand, a deed can be reformed by a court of equity only where
We would think that the plaintiff would be entitled to a specific performance of her original contract with her husband. Originally, that contract was in parol; but when said deed was executed, all the principal terms of such contract were reduced to writing, by being embodied in said deed, and the instrument was duly signed by the party to be charged. And an instrument, void as a conveyance, is often considered sufficient, upon which to found an action for specific performance, or to grant other proper equitable relief. (Knaggs v. Mastin, 9 Kas. 548; Butler v. Kaulback, 8 Kas. 676, and authorities there cited; Welsh v. Usher, 2 Hill Ch., S. C., 168; Robeson v. Hornbaker, 2 Green Ch., N. J., 60, which is nearly exactly applicable to the case at bar; Stewart v. Brand, 23 Iowa, 477; and see authorities cited in Miller v. Davis, 10 Kas. 550, et seq.)
Besides, the plaintiff has been in the actual possession of the property in controversy, occupying the same as her homestead and claiming the same as her own ever since said deed was executed, over four years of which time she occupied the same with the consent of the said.grantor, or, perhaps, rather the intended grantor.
But we do not think that it is absolutely necessary that the plaintiff should have an action for specific performance in order to sustain the ruling of the court below. She being in the actual possession of, the property, and claiming title thereto, has the right to have her title quieted — provided she has a right to the title — under any rule or rules of law or equity. (Civil Code, § 594.) And that she has such right to the title to the property, we think is clear beyond all reasonable doubt. It was her money that purchased the property. It was agreed that the title should be conveyed to her. There was an attempt made to so convey the title, and the attempt failed, merely from a failure to state in the deed of conveyance the number of the block arid the name,of the city
If the judgment of the court below does not correspond in form with the opinions expressed by this court, it may be modified so- that it will. In substance, however, the judgment of the court below will be' affirmed.
