32 N.J. Eq. 28 | New York Court of Chancery | 1880
The bill alleges that, in March, 1866, differences had arisen between the defendant and her husband, James J. Smith, in regard to their respective properties, and that, by .an agreement then made between them, they, in consideration of a release by the wife of all interest in the property
The bill prays that the deed from Mrs. Smith and her husband to the trustees may be rectified by the insertion therein of such a provision. The claim to that relief is based on the allegation that the provision was omitted from the deed by mistake. The bill does not state that the omission was by the mutual mistake of the parties, but that such was- the understanding, and that it was communicated to the lawyer by whom the deed was drawn, who, through mistake, omitted it. The affidavit annexed to the bill is to the same effect. Unless the omission was by mutual mistake the deed will not be reformed by inserting the provision. The defendant swears that there was no such understanding or agreement, and that there was no mistake; that the deed was, when it was executed, regarded by the parties as so exactly expressing their intention that a conveyance of the property from the trustees to Mrs. Smith, which had been prepared by the lawyer to be executed simultaneously with the deed, was not executed because it was deemed unnecessary. The complainants, it is true, in their affidavit annexed to the bill, swear to the existence of the agreement, and that the provision embodying it was omitted by mistake from the deed; but, as before mentioned, they do not swear that the omission was through mutual mistake. It is worthy of remark that their bill is not fortified by the affidavit of the
The absence of his affidavit in verification of the bill is, however, noteworthy. On the affidavits of the parties, and the statements in their respective pleadings, the case stands thus: The existence of the agreement is affirmed by the complainants and as positively denied by the defendants; neither the bill nor the affidavit attached to it states that the ‘alleged mistake was mutual; the defendant denies that there was any mistake. One who seeks to rectify an instrument on the ground of mistake must be able to prove not only that there has been a mistake, but must be able to show exactly the form to which the deed ought to be brought in order that it can be set right according to what was really intended by the parties, and must be able to establish, in the clearest and most satisfactory manner, that the alleged intention of the parties to which he desires to make it conformable, continued concurrently in the minds of all parties down to the time of its execution. Kerr on F. & M. (Am. ed.) 421.
It is not enough to show that the alleged omission was contrary to the intention of the complainants; it must also be shown incoutrovertibly that it was contrary to the intention of both parties. Thompsonville Scale Manufacturing Co. v. Osgood, 26 Conn. 16; Nevius v. Dunlap, 33 N. Y. 676 ; Kerr on F. & M. (Am. ed.) 409.
On the case, then, as made by the bill, no decree of rectification would be made, because it is not averred that the alleged mistake was mutual. But the complainants insist
The injunction will be dissolved, with costs.