174 S.W.2d 826 | Mo. | 1943
Suit in equity to reform a deed conveying real estate. The decree was for plaintiff and defendants appeal.
Appellants' assignments of error go to the sufficiency of the petition to state a cause of action and to the sufficiency of the evidence to support the decree in plaintiff's favor.
The petition alleges that on April 27, 1931, plaintiff, by warranty deed, conveyed to defendants as husband and wife the east half of the west half of the northwest quarter and the east half of the northwest quarter of the southwest quarter of a certain described section and took back a deed of trust on said land for the purchase price; that later plaintiff and defendants agreed that, for the sum of one hundred dollars and the cancellation of the indebtedness, defendants would reconvey the land to plaintiff; that on April 14, 1935, defendants executed a deed to plaintiff erroneously describing the property intended and contracted to be conveyed as the east half of the west half of the northwest quarter of the northwest quarter and the east half of the northwest quarter of the southwest quarter, etc. (italics ours); that said deed did not express the mutual intent of the parties as previously agreed, but was executed and delivered by defendants and received by plaintiff under the mutual mistake of fact as to the description, in that said deed was to convey the property first described; that plaintiff has requested and demanded a correct deed and defendants have refused, etc. Then follows a prayer for reformation of the deed. *1021
Defendants did not demur to the petition, but filed an answer which, so far as material here, admits that plaintiff conveyed to them the property first described in his petition and that they executed a deed of trust on the same land to plaintiff to secure the purchase money; then the answer says that plaintiff started foreclosure proceedings and defendants filed a petition in bankruptcy in the Federal Court under the Frazier-Lemke Act; that later defendants proposed to plaintiff that he pay them one hundred dollars and cancel their indebtedness and they would convey to him the land described in the deed which they executed on April 14, 1935; that plaintiff agreed to this, paid them the one hundred dollars, canceled the indebtedness, and received, accepted and recorded their deed; that defendants dismissed[828] their petition in bankruptcy; then the answer prays affirmative relief.
[1] Appellants contend that the petition contains no allegation of mutual mistake in drawing the deed and "that a necessary averment is that the scrivener acted under the direction of both grantor and grantee in drawing the deed; otherwise, the pleading does not charge the mistake to be mutual", citing: Dougherty v. Dougherty,
[2] As to the evidence: It is undisputed that plaintiff conveyed the land first described in his petition to defendants and took back from them a deed of trust on the same land; later, in pusuance to an agreement between plaintiff and defendants, he paid them one hundred dollars and canceled their indebtedness and they made him a deed. Here the conflict begins. The deed which defendants gave back to plaintiff conveyed only a part of the land which plaintiff had conveyed to them, and described a ten acre tract which plaintiff had not so conveyed and which defendants did not own.
Plaintiff says that he intended to receive, and defendants intended to convey, the same land which he had conveyed to defendants. Defendants say they intended to convey the land which they actually described in their deed, and if there was a mistake it was the mistake of the plaintiff alone. We think that the fact that defendants included in their deed land which they did not own, and warranted title to same, is strong indication of a mistake on their part. One of the defendants, Mr. Edwards, attempted to explain the inclusion of this ten acre tract by saying his father-in-law had an option on it, but the option was not produced, was never exercised, and this evidence was not otherwise corroborated. This witness testified that, although plaintiff agreed to pay defendants one hundred dollars and cancel their indebtedness of more than $3100.00 in return for a deed, there was no agreement prior to the delivery of the deed as to what land the deed should convey. Such testimony is incredible. Reading the whole record, we find abundant proof to convince the chancellor that defendants agreed to reconvey to plaintiff the same land which he had conveyed to them. If so, and defendantspurposely misdescribed the land in their deed they were guilty of such fraud or inequitable conduct as to authorize reformation of the deed under proper allegations although the mistake was not mutual. [Hoxsey Hotel Co. v. Farm Home Sav. Loan Ass'n.,
[3] Appellants (defendants) cite cases holding that, in this kind of case, the burden is on plaintiff to prove his case by cogent and convincing testimony. Those cases correctly state the law, but the facts considered in each of them differ from those in the instant case in important particulars. In some of them there was insufficient evidence of any mistake. In others no previous agreement was shown and the mistake was that of one party only or of the scrivener who represented only one of the parties.
[4] Appellants cite a number of cases, and could have cited many more, holding that when a deed is delivered and accepted it becomes equivalent to a contract and all prior negotiations are merged in the deed. Appellants argue from this that since plaintiff could read and was not prevented from reading the deed he is bound by its terms and equity will not furnish him relief from his own negligence. The principal cases relied upon by appellants in this connection are Employers Indemnity Corp. v. Garrett,
[5] Appellants say that in any event the deed cannot be reformed so as to convey the interest of the defendant, Mrs. Edwards, citing Meier v. Blume,
We hold that the decree should be and is affirmed. All concur.