106 Neb. 661 | Neb. | 1921
Thomas J. Miller, the plaintiff, commenced this action in the district court for Holt county, Nebraska, against the defendant, Frank Vanicek, for the purpose of reforming a written contract for the sale of real .estate, entered into between the parties on July 8, 1919. The petition alleged that the plaintiff and the defendant entered into a contract whereby the plaintiff agreed to sell, and the defendant agreed to buy, the S.W.14 of section 5, township 29, range 10, in Holt county, Nebraska; that by a mutual mistake of the parties and the draftsman the land was described as being in range 11, when it should have been range 10. The specific reformation asked was to have the contract read “range 10,” instead of “range 11,” and to have the purchaser’s name spelled correctly.
Frank J. Pimper intervened, alleging that he was interested in the result of the controversy adversely to the plaintiff. He further alleged that on August 28, 1919, he entered into a contract with the defendant to purchase the S.W.14 of section 5, township 29, range 11, in Holt county, at the agreed price of $70 an acre, $1,000 of which was paid at the time'of the making of the contract; that
The reply of the plaintiff to the petition.of intervention alleged that prior to the making of the contract between intervener and defendant, and prior to the paying of any part of the purchase price, the intervener examined the land described in his contract and ascertained facts sufficient to put him on inquiry, which would have disclosed the mistake in the description of the land.
The trial court found the issues in favor of the plaintiff ; entered a judgment reforming the contract as prayed; and dismissed the intervener’s petition. From this judgment the intervener has appealed.
It appears that on July 2, 1919, the plaintiff contracted to purchase of one C. M. Daly the S.W.% of section 5, township 29, range 10, in Holt county; that shortly thereafter the plaintiff entered into negotiations with the defendant to sell the above described premises At that time the defendant was shown on a plat the location and description of the land, was informed of the nature of the improvements thereon, and the distance from O’Neill, the county seat. The parties then entered into a contract which was to be left in escrow at the bank until such time as the defendant could examine the property. It further appeal's that shortly thereafter the defendant examined the land so described in range 10, and expressed himself as being entirely satisfied therewith, and thereupon paid $600 of the purchase price; that through a mistake of the scrivener the land was described in the contract as being
We come now to a consideration of the issue presented by the petition of intervention, which turns upon whether the intervener is to be regarded as a good-faith purchaser. If he was, then, notwithstanding the mutual mistake of the plaintiff and defendant in drafting their contract, a court of equity would refuse to reform the contract,, or, if it did order a reformation, would amqfly protect the intervener’s rights. A bona fide purchaser of land is one who purchases for a valuable consideration paid or parted with, without notice of any suspicious circumstance which would put a prudent man upon inquiry. Carpenter Paper Co. v. Wilcox, 50 Neb. 659. No doubt the general rule is as argued by the intervener, that a mutual mistake will not be corrected in equity as against the rights of innocent third parties. But it is also the settled rule that mutual mistakes in the description of land in written instruments will be reformed, not only as against the parties to the contract, but also against subsequent purchasers chargeable with notice of the mistake. Carpenter Paper Co. v. Wilcox, 50 Neb. 659.
Without attempting to quote at any length the testimony, it is fairly shown that intervener resided at Howells, a short distance from Dodge, where the defendant lived. Intervener for several years had been engaged more or less extensively in selling land in Holt county for one McKillip, who had a large quantity of land for sale in that county, and in this manner intei’vener became
Without entering further into the details, of the evidence, in our vieAV the intervener was charged-with ample notice which would have put a prudent man on inquiry, and Avhich, if followed up, would have disclosed that there Avas a mistake in the description of the land.
Under the facts as disclosed by the record, we-are convinced that the intervener is not a bona fide purchaser*, and that, therefore, the trial court Avas right in dismissing his petition of intervention.
The judgment is
Affirmed.