16 Ill. App. 368 | Ill. App. Ct. | 1885
This was an application to a court of equity to reform a deed, upon the ground of mere mistake. The law is well settled, that to justify the reformation of a written instrument upon that ground, the alleged mistake must be one of fact and not of law; secondly, such mistake must be proved by clear and entirely satisfactory evidence; a mere preponderance of evidence is not sufficient; thirdly, the mistake must be mutual and common to both parties to the instrument. Broadwell v. Broadwell, 1 Gilm. 599; Beebe v. Swartwout, 3 Gilm. 178; Shafer v. Davis, 13 Ill. 395; Sibert v. McAvoy, 15 Ill. 106; Shay v. Pettes, 35 Ill. 360; Wood v. Price, 46 Ill. 440; Emery v. Mohler, 69 Ill. 228; Sawyer v. Hovey, 3 Allen, 331; Andrews v. Essex Iris. Co., 3 Mason, 10; Stockbridge, etc., v. Hudson River Iron Works, 102 Mass. 48; Nevins v. Dunlap, 33 N. Y. 672.
There is no element of fraud or imposition in this case; nor is it one where the deed in question was prepared by a scrivener, and the parties had come to an oral agreement, some portion of which was omitted therefrom by mistake of the scrivener, or where he had put in terras which had not been agreed upon by like mistake. The deed was, in fact, prepared by a scrivener of appellee’s own choosing. He ivrote in it, while so preparing it, the clause sought to be reformed, viz.: “ And the party of the second part agrees to pay all taxes and assessments for eighteen hundred and seventy-three,” just as the parties to the instrument directed him to write it. Then he read the instrument over to the parties, before it was executed, correctly, and as it was written. They both declared themselves satisfied with it, and it was signed and delivered.
The deed contains an express covenant on the part of appellee, the grantor, that the premises were then free and clear from all taxes and assessments of every nature or kind. The fact of the then existence of the South Park special assessment upon the premises was well known to both of the parties. But the bill contains no allegation of any mistake relating to that express covenant. It stands, therefore, as a substantive and unassailed part of the instrument, which appellee is seeking to overcome by parol evidence. Emery v. Mohler, 69 Ill. 227.
-But we are of opinion that the appellee failed, upon the hearing, to show by evidence that can be regarded as clear and satisfactory, that appellant did, during any of their conversations before, or at the time of the execution of the deed, come to any such agreement with her as is alleged in her amended, bill. The upshot of the entire case is, that the clause first above mentioned was agreed upon by the parties; it was pnfc into the deed in terms as they agreed and directed it to be put in; it w"as afterward correctly read to and approved by them; but it turns out that it will not hear the construction which appellee put upon it, or supposed at the time that it would bear. The mistake then was in the construction of the clause, which is a mistake of law and not of feet, and which can afford no ground for the reformation of the deed.
The decree of the court below will he reversed and cause remanded for further proceedings not inconsistent with this opinion.
Decree reversed.
Wilson, P. J., dissents.