10 Utah 400 | Utah | 1894
The plaintiff claims that, in a certain warranty deed made and executed by him and his wife on the 2d day of May, 1890, to the defendants H. B. Westover, George J. Kelly, and C. D.' Hall, there was inserted in the description therein, among several other parcels of land, a certain parcel, by mutual mistake; that there was no intention on the part of the grantor to convey, nor on the part of the grantees, to purchase, the parcel of land so erroneously included in the description of the other lands contained in the deed. The defendants refusing to convey, he brought this action to reform the deed, and asked that it be set aside and held for naught, so far as the land so erroneously conveyed is concerned. The case was tried before a referee, and upon judgment being rendered in his favor, and a motion for a new trial having been denied by the court, the defendants appealed. The defendants Jlle and McMillan were not named as grantees in the deed, but it is claimed they were parties to the original transaction, and had full knowledge of the land which was intended to be conveyed, and in a short time thereafter their interest therein was evidenced by deeds from the other defendants. Among other facts, the referee found, substantially, that- when the deed of May 2, 1890, was executed and delivered, neither of the defendants knew that the land in controversy was described therein, nor intended it to be a part of the land conveyed; that
The first contention of counsel for the appellants is that the court erred in admitting in evidence the optional contracts mentioned in the findings of fact, and it is insisted that the land in question is not referred to in either of these contracts. It is evident that these contracts were not introduced in evidence for the purpose of making any reference to the land in question, but for that of showing the intent of the parties as to what 'land should be conveyed by the plaintiff. It is apparent from the record, and the referee so found, that these contracts constituted the basis of the whole transaction, and the fact that the land in question was not referred to in either of them, .while the land to be conveyed was properly referred to in each of them, if not a strong inference, is at least a cir-
The further point is also made that the evidence is insufficient to justify the findings of the referee. While there appears to be some conflict in the evidence, yet it seems clear and certain therefrom that the material allegations of the complaint are substantially sustained. The findings of fact having been adopted by the court, and the referee having heard the evidence, and having had an opportunity to observe the several witnesses while on the stand, and notice their conduct and bearing,' this . court will not disturb the conclusions reached, in the absence of a clear showing that there is a mistake or oversight which materially affects the substantial rights of the appellants. Mining Co. v. Haws, 7 Utah, 515, 27 Pac. 695; Wells v. Wells, 7 Utah, 68, 24 Pac. 752; Dooly Block v. Salt Lake Rapid Transit Co., 9 Utah, 31, 33 Pac. 229. It is clear that, under the circumstances of this case, the defendants named as grantees in the deed were chargeable with notice of the equities of the plaintiff; and, even if it were conceded that defendants McMillan and lile had no actual knowledge of the mistake in the deed at the time of their purchases, they are still chargeable with actual notice of the plaintiff's equities, because the plaintiff at that time was in the actual possession of the land in controversy, and such possession was actual notice to all the world.