Miller v. Davis

10 Kan. 541 | Kan. | 1873

The opinion of the court was delivered by

Valentine, J.:

Guy C. Hobart sold certain real estate and personal property to Albert Miller, the plaintiff in error, for the sum of $1,550, the real estate being valued at $1,050, and the personal property at $500. The ágreement between them was as follows: Hobart on his part was, to execute to Miller a deed for the land; Miller on his part was to pay Hobart $50 down, and execute to him three promissory notes for $500 each, and was to execute to Hobart a mortgage on the land to secure the payment of the three promissory notes. All this was done in accordance with the agreement of the parties, except that in executing the mortgage the name of Hobart was once used in the place of Miller, and Miller’s name was three times used instead of Hobart’s. In every other respect the original agreement of the parties was fully carried out; and in every other respect the mortgage was correct, and in due form. The names of Miller and Hobart were each used twice in said mortgage correctly, and the mortgage was executed by the proper person, and in due form. Two of the promissory notes were paid when they became due. The other note and the supposed mortgage were assigned to E. M. Davis, the defendant in error, (who was plaintiff below.) Davis sued Miller on the note and supposed mortgage, and prayed for a judgment on the note and for a decree that the supposed mortgage should be reformed and foreclosed. The action was tried by the court, without a jury, on an agreed statement of facts, and the prayer of the plaintiff below was granted. It is agreed by the parties, that the supposed mortgage was drawn up defectively through a mutual mistake of the parties; that it was intended that a proper mortgage should be drawn up and executed, and it was supposed that such a one had been drawn up and executed; but how the mistake occurred in drawing the mortgage is not definitely shown. If it was a mistake purely of law we suppose the mistake cannot be corrected by a court of equity; and if the parties had a clear conception of every word they used in the mortgage, but mistook the legal effect of the instrument, we suppose it was purely a mistake of law. We do not however wish here to assert or admit that no mistake of law can ever be corrected by a court of equity. There may possibly be some cases where such mistakes can be corrected: McNaughton v. Partridge, 11 Ohio, 223; Evarts v. Strode, 11 Ohio, 480; Clayton v. Freet, 10 Ohio St., 544; Ormsby v. Longsworth, 11 Ohio St., 653, 666; Green v. Morris, 1 Beasly, (N. J.,) 165; Mortimer v. Pritchard, 1 Bailey Ch., (S. C.,) 505; Lucas v. Lucas, 30 Georgia, 191, 202; Clayton v. Bussey, 30 Georgia, 946; Longhurst v. Star Ins. Co., 19 Iowa, 369; Brew v. Clarke, Cook, (Tenn.,) 374. But if the mistake in this case was a mistake .purely of fact, or if it was a mistake partly of law and partly of fact, then we suppose that there can be but little doubt but that the mistake may be corrected, and the mortgage reformed. And if the parties to the instrument were mistaken in facts, it makes no difference whether the person who drew the instrument was mistaken in law or in fact, or was not mistaken at all. In the case of Hunt v. Bansmanier’s Adm’r, 1 Peters, 13, the supreme court of the United States use the following language: “ 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 fulfill, 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.” See also, Scales v. Ashbrook, 1 Metc., (Ky.,) 358; Canedy v. Marcey, 13 Gray, 373. Every person is presumed to know the law; and unless the facts of a case show affirmatively that a party has manifestly mistaken the law, it will be presumed that any mistake which has occurred was a mistake purely of fact. The courts will not presume against the evidence, or without evidence, that some person has been ignorant of the law, or has been mistaken with regard to the law, when the presumptions of the law are all the other way. This principle holds with overwhelming force where the law is plain, where it has long been established, and where it is-generally, if not universally and actually, as well as presumptively known by every adult person of sound mind within the commonwealth. In such a case it will always be presumed, if not against strong evidence, that something else besides a mistake of law has intervened to produce the result. The fact that the law is so well and universally understood by all the people is in such a case strong evidence that no mistake of law has occurred, and that some other ground exists upon which a court of equity may grant the proper relief: 1 Story Eq. Jur., §§ 128, 138e, 138/, and note 1, and § 138<y In the present case the name of Hobart was once inserted in said mortgage as grantor where the name of Miller should have been inserted, and the name of Miller was three times inserted in said mortgage as grantee where the name of Hobart should have been inserted. Now can it be supposed that any person could mistake the law so as to suppose a grantor to be a grantee, or a grantee to be a grantor? Such a thing can hardly be imagined as possible. But it is easy enough to suppose that a person drawing a mortgage might carelessly and inadvertently insert the name of the grantee where the name of the grantor should be, and insert the name of the grantor where the name of the grantee should be. And this was probably the fact in the present case. At least, taking the record as it is presented to us, we must presume that such was .the case. If so, the mistake was one of fact, and not of law. But even if the person drawing the mortgage intentionally inserted the names wrongfully in the mortgage, still, as the parties who executed the mortgage did so in ignorance of any such intention, their mistake was one of fact, and not one of law.

It seems to be claimed by counsel for plaintiff in error that an instrument must be valid and binding upon the parties in order to be reformed. This is certainly not correct. It is true, that the original agreement must be one that the parties may legally make. It is equally true that the agreement that the parties attempt to put in writing must be one that they could legally enforce if it were such as they intended to make it. But it is not true that the instrument when made shall in every case express a legal and valid contract or agreement. It has been held that a written contract which through mistake is made to appear upon its face to be usurious, and therefore void under the statutes of the state where made, may be corrected and reformed in equity so as to conform the instrument to the real agreement of the parties, and then enforced: Mortimer v. Pritchard, 1 Bailey Eq., (S. C.,) 505. It has also been held that a blank bond, dated and signed, but not showing who the obligee was, nor even showing who the obligor was except by the signature, with scarcely any of the blanks filled, and therefore void at law, might nevertheless be corrected and enforced in equity: Gray v. Rumph, 2 Hill Ch., (S. C.,) 6. In Iowa it has been held that-where an intended deed for a town lot was void because the deed gave the number of the lot and block only, and did not state in what town the lot and block were situated, the error could be corrected in equity: Stewart v. Brand, 23 Iowa, 477. In Connecticut it has been held that a bond void because through accident or mistake no seal was attached to it may nevertheless be made good in equity: Montville v. Houghton, 7 Conn., 543. And in the same state it has been held that equity will relieve and supply the defect where a deed is void because not subscribed by a sufficient number of witnesses: Smith v. Chapman, 4 Conn., 344; Watson v. Wells, 5 Conn., 468; Carter v. Champion, 8 Conn., 549. In Maryland it has been held that where a promissory note, or “single bill” as there termed, was void at law because of the omission through mistake of th'e word “ dollars,” equity would supply the defect, and make the note valid: Newcomer v. Kline, 2 Gill & Johnson, 457. It has often been held where a deed of conveyance has been made which should by previous agreement include certain lands, but which from accident or mistake does not include them, and is therefore void as to such lands, equity will correct the mistake and insert such lands in the deed: White v. Wilson, 6 Blackf., 448; De Remer v. Cantillon, 4 Johns. Ch., 85; Tilton v. Tilton, 9 N. H., 385. And for omissions being supplied, see Stanley v. Goodrich, 18 Wis., 505; Williams v. Hatch, 38 Ala., 338. In the case of Kennard v. George, 44 N. H, 440, 445, George and wife bought a farm of Mace Kennard, furnishing the purchase-money, and the parties agreeing to give to him a valid security for his money, but instead of doing so they gave him through mistake as to the legal effect of the instrument a note and mortgage executed by the wife of George, she being a married woman, which note and mortgage were therefore under the laws of New Hampshire void. It was nevertheless held that the court could correct the mistake and grant the proper relief. In Kentucky, where the title to land is conveyed there is under their statutes no vendor’s lien secured “ unless it be expressly stated in the deed what part of the consideration remains unpaid.” (2 Stant. Rev. Stat., 230, § 26.) But where the Reed does show what part of the consideration remains unpaid the vendor has alien therefor on the land equivalent to a mortgage lien in Kansas. Under the Kentucky statutes a deed was executed for certain land, and two promissory notes given for the purchase-money remaining unpaid; but through mistake the deed did not show how much of the purchase-money remained unpaid. The vendor therefore had no written lien at all. His written mortgage was not merely void, but he had none at all. The court nevertheless held that the deed could be reformed, a written mortgage thereby being virtually created, and the lien enforced: Worley v. Tuggle, 4 Bush., (Ky.,) 168. The case of Scales v. Ashbrook, 1 Metc., (Ky.,) 358, has some points of resemblance to the case at bar. In that case Marshall and Ashbrook borrowed some money of Scales to pay a debt for which they were both liable, and executed their joint and several promissory note to Scales for the same. Some time afterward Marshall and Ashbrook agreed with Scales to take up their note and give him a bill of exchange in payment therefor, on which Ashbrooh was to remain liable to Scales.But by mistake and ignorance as to the order in which parties to such paper are held to be liable, Scales was made the-drawer and Ashbrook the payee and indorser, whereby, instead of Ashbrook remaining liable to Scales on said bill, Scales became a/nd was liable to Ashbrooh. The court held that in such a case equity would grant the proper relief, and would compel Ashbrook to pay Scales the amount of the bill. Man)1' other illustrations might be given if it were thought necessary. Courts cannot of course make contracts for parties, but they can reform written instruments so as to make such written instruments express the real contracts of the parties. Contracts affecting real estate must of course under the statute of frauds be in writing. But there are many cases where the statute enacted to prevent frauds by requiring contracts to be in writing does not apply so as to enable a party to commit a fraud, and this is one of such cases. The judgment of the-court below must be affirmed.

All the Justices concurring.