Shedwick v. Prospect Methodist Episcopal Church, 28 A. 499

Shedwick v. Prospect Methodist Episcopal Church

28 A. 499

Pa.

1894

Check Treatment

Opinion by

Mr. Chief Justice Stebbett,

There cannot be any doubt as to the correctness of the body of the dеcree reforming the deed so as to exclude lot number two hundred and eighty-nine (289) — which the grantor evidently never agreed or intended to donate and convey to the grantee — and thus make it what both parties at first intended it should be, a сonveyance of lots two hundred and eighty-five (285), two hundred and eighty-six (286), ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍two hundred and eighty-seven (287) and two hundred and eighty-eight (288). The only complaint is as to the last clause of the decree wherein it is “ ordered, adjudged and decreed that the plаintiff pay the costs of this suit.” The learned master reported in favor of a decree imposing one half of the costs on each of the parties, but the court thought that the inclusion of lot two hundred *59and eighty-nine (289) in the deed, as executed and delivered, was due to the negligence of the plaintiff in signing and delivеring the deed without reading it. It should be remembered, however, that on application of two members of defendant’s committee, plaintiff agreed to donate to the church three lots, and a few days afterwards on appliсation of one member of the committee he agreed to add to his gift lot two hundred and eighty-eight (288). In that negotiation it was mutually understood that the defendant wоuld have the deed prepared and presented for execution. This wаs done; but, by some unexplained mistake, lot two hundred and eighty-nine (289) was included, and thе plaintiff, having entire confidence in the integrity and accuracy of the church people and their scrivener, who appears to have been one of them, executed and delivered the deed in the firm belief that it was correct. The mistake was doubtless mutual, as the learned master has found, аnd was not discovered until about ten years thereafter. It was then defendant’s duty to resort to every means of information within its reach, for the purpose of ascertaining whether the mistake, of which it was informed by plaintiff, had in fact been made. If ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍its own records did not furnish the desired information, it should have applied tо those by whom it was represented in the negotiation for the property. The two members of the committee, George B. Russell and James E. Thomas, who cаlled on plaintiff and negotiated the gift, were both within reach, but it does not aрpear that defendant, or any one in its behalf, applied to them or еither of them for information. Both of these gentlemen were before the master, and by their testimony corroborated the plaintiff and sustained his averment of mistake in the preparation of the deed. If that information had been sought and obtained in the outset, as it evidently might and should have been, we cannot believe the defendant would have hesitated to voluntarily correct the mutual mistake. That would ha.ve ended the matter, as it should have been, without' the expense incident to the litigation which a different line of policy necessitаted. Instead of doing what in the circumstances should have been done, the dеfendant, actuated at least by a spirit of indifference, intrenched itself behind the deed and called upon the plaintiff to make full proof of the alleged mutual mistake. He accepted the burden and proved the faсt *60in issue to the entire satisfaction of the learned master and the court below. The finding of ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the master is not even questioned in this court. It is virtually conceded to be correct.

In view.of all the circumstances, we are unable to see any reason for departing from the ordinary rule in equity, that the successful рarty is entitled to costs. On the contrary, we think there are good reasons why thе rule should be enforced. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍That may be done by substituting the word “ defendant ” for the word “рlaintiff” in the last line of the decree. As thus amended, the decree is affirmed, with costs, including the costs of this appeal, to be paid by the defendant.