142 Mo. 621 | Mo. | 1898
Action of ejectment for eighty-nine and one half acres of land in Buchanan county. Ouster laid on March 1, 1893. " The answer is a general denial, and an equitable defense with a prayer for reformation of a deed from James C. Vanhoozer to Harriet Vanhoozer. The circuit court reformed the deed and gave judgment for defendants. Plaintiffs appeal.
James 0. Vanhoozer, the principal defendant, admitting having executed the deed under which plaintiffs claim title, averred and charged in his answer: “That by mutual mistake, error and oversight on the part of said Harriet Vanhoozer, and James C. Vanhoozer, and the person who wrote and prepared said deed, the words, ‘for and during her natural lifetime,’ were left out of said deed when said words by said mutual mistake, agreement and understanding, should have been inserted in said deed after the following words, to wit: ‘Forever quitclaim unto the said party of the second part,’ and also after the words in said deed, to wit: ‘Unto the said party of the second part, and her heirs and assigns,’ and in every other place in said deed where said words would be inserted to cause said deed to convey to said Harriet Vanhoozer the interest of the
W. 8. Wells, who prepared the deeds, testified: “They said to me that they wanted me to draw up the deed, that they wanted to know, each one wanted to know, what they were entitled to, and that they wanted me to draw up the deeds between the two parties, and Mrs. Vanhoozer said that she wanted to know what she got during her lifetime, and that she wanted something to show that she was entitled to it, and that all she wanted was the property during her lifetime.” In response to this question by the court, “When she ‘directed you to draw the deed, what did she say to you in reference to the length, duration of the estate, if anything?” Mr. Wells answered, ‘‘Well, she just said to me that she wanted me to make a deed from him to her and she didn’t state just whkt she wanted in the deed, but before that she had stated that she wanted a deed to show what she was entitled to her lifetime.” E. C. Wells testified that at the time he took the old lady’s acknowledgment to the deed she made James, he heard her say “that Jim had made her a deed for her lifetime to the eighty acres on which they lived and ten acres besides.” Just before her death she stated to Mr. John Thomas: “That she intended for Jim and his •children to have it, the land; said that was the agreement between her and Jim; at her death, it was to fall to Jim.” “That she wanted Jim and his children to
This is a fair synopsis • of the testimony. It is apparent that the warmest affection existed between Mrs. Vanhoozer and her stepson and yet it is equally
I. At the common law, when a contract or agreement of parties was committed to writing and was complete on its face, it was conclusively presumed that all prior negotiations were merged in the writing and parol evidence was inadmissible to contradict or vary the terms of the contract or agreement as shown by the writing. But from time immemorial courts of chancery have exercised the right to correct written instruments which have been erroneously framed, as where it is admitted or proven that an instrument intended by both parties to be prepared in one form has by an undesigned insertion or omission been prepared-or executed in another. But while a court of equity will correct a mistake in a written instrument, the evidence that there has been a mistake should be clear and convincing, because in equity as in law the prima facie presumption is indulged that the written contract or instrument exhibits the ultimate intention, and that all previous negotiations and proposals have been abandoned. The burden, therefore, is upon the party asserting the mistake. Sweet v. Owens, 109 Mo. 1; Tesson v. Ins. Co., 40 Mo. 33. Moreover, the mistake must be mutual and both the agreement and the mistake must be made out by satisfactory and clear evidence.
The evidence in this case satisfied the learned judge who tried this cause in the circuit court that a mistake had been made as alleged and we are disposed to defer much to his opinion, but while indulging this presumption in favor of the correctness of his judgment, we are not at liberty, even if so disposed, to deny our -own
The allegation then is that there was a mutual mistake by Mrs. Harriet Vanhoozer and James 0. Vanhoozer and his wife in the deed to Harriet Vanhoozer on the twenty-second day of May, 1885. There are certain features of this case which a court of equity can not ignore. The grantee in that deed, Mrs. Vanhoozer, is dead. The mistake now alleged was never mentioned in her lifetime, and her version of what the agreement was which culminated in this deed can never be known from her own lips. No claim that such a mistake was made by defendant James C. Vanhoozer appears even to have been made until 1893 some seven or eight years after the execution and recording of the deed. James C. Vanhoozer was incompetent to testify as to the agreement entered into between his stepmother and himself which resulted in the making of the deed because at the time x>f the trial Mrs. Vanhoozer was dead. The most satisfactory evidence aliunde the deed itself, then, is barred out and resort must be had to the next best.
Mr. W. S. .Wells, who drew the conveyance, and the notary who took the acknowledgment, testified: The scrivener says positively in answer to a question from'the court that Mrs. Vanhoozer did not direct him how to draw the deed as to the duration of the estate she was to take, but simply said she wanted a deed to show what she was entitled to in her lifetime. In the nature of things he could not have mistaken her wishes. There is nothing in her statement to show that she directed a conveyance to her for life only, and he distinctly testifies and reiterates the statement that the deed now is just as he intended to write it. That he made no mistake so far as his own intentions were
There is no evidence of what the agreement was as to the character of deed Mrs. Vanhoozer was to receive ; there is no evidence of any directions by James C. or Mrs. Harriet Vanhoozer to prepare a deed conveying only a life estate; there is nothing to indicate that James was misled in any way, but on the contrary he executed the deed with every .opportunity to discover its contents. There is evidence that he endeavored to rent the land from his mother’s administrator; there is abundant evidence that no claim of mistake was made for seven years after the deed had been put to record.
The evidence that there was a mistake is indefinite and unsatisfactory. In such a case equity, as well as the law and experience, alike dictate that the conveyance should stand as written, acknowledged and recorded. Ringo v. Richardson, 53 Mo. 385.
The judgment and decree of the circuit court is reversed with directions to enter judgment for plaintiffs for the possession and rents and profits agreed upon and to set aside the decree changing the deed.