| Ill. | Dec 16, 1903
delivered the opinion of the court:
It is earnestly insisted by appellant that the finding of the decree that the tract of land in dispute was intended by all parties to this transaction to be included in the deed is not supported by the evidence. It will be observed from the foregoing plat that the land in question is in the heart of the farm which was owned by the appellant. Negotiations for the sale of this land were opened between Stanley and J. Cecil Brook at the home of the latter’s father, in Henderson county, near the Stanley farm. At that time, according to Brook, Stanley desired and offered to sell his “farm.” Shortly after this J. Cecil Brook and appellee went to look the farm over, and both testify that at this time Stanley offered to sell the “farm,” and made no suggestion about reserving any part thereof. During the negotiations Stanley was several times at the residence of the elder Brook, and there, on at least one occasion, he took the map of Henderson county and pointed out thereon the land which he .owned and desired to sell, it being the same land which the foregoing plat shows that he owned. Stanley himself says that when he first went to see John Brook and talked with him with reference to the land, he, Stanley, showed him the different pieces on the Henderson county map, and in this connection it is important to observe that the disputed tract is not shown on that map as a separate tract, but is included with the remainder of the north-east quarter of section 5, as that map erroneously locates the highway by showing that, coming south to the township line, it jogs straight east to the north-east corner of section 5 and then runs south on the east line of section 5, which would throw this tract west of the highway, and this error makes it appear that this tract is in no way separated from the quarter section. All parties agree that nothing was ever said to either purchaser about reserving or excepting any of the land. Now, if Stanley pointed out the various pieces he was selling on that map and did not speak of excepting or reserving any portion thereof, he must have pointed out a tract which on that map included the small piece of land involved in this litigation. It is true that Marshall said, during the negotiations, that he was to have the land west of the road, only, but he also says he was to have all the land in section 5; and this inconsistency, we think, is explained by the fact that the Henderson county map was used, and that, treating the highway as being correctly located thereon, all the land in section 5 would be west thereof. Had the highway been where shown by that map then there would have been no inconsistency in the two statements. But, in any event, that inconsistency only went to the way in which the land was to be divided between Marshall and the other two purchasers. If Stanley sold the whole farm to the three, and Marshall was to have only that west of the road, that east of the road would be the property of the other purchasers, and as it now appears from the answer of the other purchasers that in the division among the purchasers, in accordance with which it was attempted to have the deeds made, this tract was to go to Marshall, that inconsistency becomes immaterial. Stanley himself testified that when the negotiations were opened the purchasers wanted to know how much he would take an acre for his land; that this tract now in dispute was a part of his land; that he quoted them a price per acre and said nothing about any reservation; that afterward he directed Waldock, the real estate agent, to sell them his farm or his land at $70 per acre, but that he told Waldock not to sell the disputed tract, for the reason, as he says, that he might break up sometime, and in that event he wanted this for a homestead. Waldock reached a verbal agreement with the purchasers but said nothing about reserving this tract, and nothing was ever said by either Stanley or his agent about reserving it, and each of the purchasers swears that all the offers made by both Stanley and Waldock were to sell Stanley’s “land” or “farm.”
Appellant says he furnished the purchasers with the description of each piece of the land separately, and the evidence warrants the conclusion that J. Cecil Brook furnished to Kaiser, who wrote the deeds, thé descriptions which were written therein. The description contained jn the deed to Marshall, which it is sought to correct so that it will convey .all the north-east quarter of section 5, reads as follows: “The south fractional part of the north-east quarter of section No. 5, containing 13 acres, more or less,” all in township, etc. This language is regarded by counsel for appellant as being significant, and he inquires, why was the word “part” used if it was intended to convey the entire quarter? If the deed contained no description other than this one, it would be void for uncertainty in the description. It conveys absolutely nothing in the north-east quarter of section 5. There is no way of fixing the north line of the land which the grantor attempted to convey. The only conclusion which can certainly be drawn from the language used is, that the parties sought to convey approximately 13 acres off the south side of the quarter, and as the quarter section contained approximately li-k acres, the conclusion would be that the parties were attempting to convey practically all of the tract in dispute. We do not think that a consideration of this language aids the cause of appellant.
To authorize the reformatiou of a deed between parties on account of a mistake, the mistake must be that of both parties and must be proved by clear and satisfactory evidence. Cleary v. Babcock, 41 Ill. 271" date_filed="1866-04-15" court="Ill." case_name="Cleary v. Babcock">41 Ill. 271; McDonald v. Starkey, 42 id. 442; Sutherland v. Sutherland, 69 id. 481; Rexroat v. Vaughn, 181 id. 167.
Consideration of the evidence in this cause has led us to the opinion that the proof is of the character required to warrant the correction of the deed to Marshall as made by the court on the circuit. We are impelled to this determination of the matter largely by a consideration of the surrounding circumstances. This tract was practically in the center of this large farm, several miles from any town, where neither party would be apt to desire a sale of the farm without Including this. Appellant seems to have been a keen business man, possessed of a large amount of property. He was moving to an-, other, State and investing his means there. His statement that he desired to reserve this piece of ground for a homestead in case he should meet with financial reverses seems to us in the highest degree improbable. He did not intend residing on this land succeeding the sale, and it would therefore be liable to the attacks of creditors should he become unable to pay his debts. Its location made it undesirable as a home for a man without other property or means, as it was not situated where its occupant could conveniently engage in any business other than farming the lands which appellant formerly-owned and which-he conveyed in this transaction. Again, when the deeds were delivered, payment was made on the basis of the acreage as shown by the county map. From the acreage so shown, the school acre only was then deducted. If appellant was reserving the tract in' question, as he now claims, and which he says he always regarded as containing" one acre, we think it likely that he would at that time have had that deducted also.
Appellant also bases his defense to the bill upon an estoppel. The deed to Marshall, it is conceded by all parties, is erroneous, and should be reformed so that it will convey that portion of the north-west fractional quarter of section 5 which lies directly south of the southeast quarter of section 32, and the decree so reforms it b}7 directing a conveyance of that land. This tract was wholly omitted from the deed, which does not contain any language by which any attempt was made to convey it. When the land was surveyed, J. Cecil Brook called Stanley’s attention to the fact that this tract was omitted and asked him to convey it to Marshall. Stanley says he replied t'flht he would convey it if the deed did not cover it, and Brook says he first said he would convey it and then refused. However this may be, it is certain that Stanley and J. Cecil Brook proceeded, to settle the shortage in the acreage without this tract in the north-west of section 5 being" conveyed.
When the survey was made, Stanley had that portion of the north-east quarter of section 5 which lies east of the highway surveyed separately, and it was found to contain 1.037 acres, and in adjusting the acreage this amount was added to the school acre, making 2.037 acres which was deducted from the total acreage. Appellant’s position is, that J. Cecil Brook, who was acting for the purchasers in making this settlement, acted on the the.ory that this part of the north-east quarter of section 5 was not included iu the sale and should not be included in the acreage, and that Stanley refunded to .the purchasers for the same at the rate of $70 per acre, and consequently Marshall is now estopped to say that this tract last mentioned should be included in the deed. An examination of the above plat will show that the half section line running north through the middle of section 5 and through the middle of section 32 has in it the same jog to the west, at the township line, as had the section line running north on the east side of sections 5 and 32, while the narrow strip of land which composed the north half of section 5 grew narrower as it was followed to the west, so that the portion of the north-west of section 5 which, it is agreed, was omitted from the deed by mistake, was only slightly less in extent than the portion of the north-east quarter of section 5 which is in question would have been had the highway, running south along the east side of section 32, continued straight south to the half section line running- east and west through section 5, as it appears to do from the evidence of some of the witnesses, although the plat in the record, by which we have been governed, shows the angle as does the plat above set forth. J. Cecil Brook swu*rs that the 1.037 acres was deducted in figuring the shortage, because the part of the north-west quarter of section 5 above referred to, and which had been included in the survey, was not included in the deed; that while he did not know its exact dimensions, he knew that the jog west in the north and south lines was the same in the middle of section 5 as at the east line thereof, and that the portion of the north-west of section 5 above described, which should have been included in the deed, was substantially the same in extent as the portion of the north-east of section 5 which lay east of the highway, and that the figures showing the amount of the latter were accordingly adopted. There is no testimony except that of these two men as to which tract they intended to figure out when they deducted the 1.037 acres. While-it is true that support is lent to Stanley’s testimony by the fact that these figures gave the exact contents of the tract he says was figured out and were only approximately correct if it was the other tract which was deducted, still, if Stanley is right about the matter, then no deduction at all was made for the portion of the north-west of section 5 in question, but, on the contrary, Brook consented to pay for, and did pay for, that portion of the north-west of section 5 when there could be no pretense that the deed conveyed it, and when he, Brook, knew that the deed did not convey it,— a .theory which seems improbable, considering the fact that Stanley had at that time, notwithstanding Brook’s request, failed to make any conveyance to correct the error in the deed occasioned by the omission of that part of the north-west quarter of section 5. In our judgment the evidence does not preponderate in favor of the contention that the portion of the north-east quarter of section 5 which lies east of the public highway was deducted from the total acreage in figuring the shortage. Where an estoppel in pais is relied upon, the facts out of which it is claimed the estoppel arises must be established by a preponderance of the evidence, and (disregarding- other objections to the successful interposition of this defense in this case) as there is no such preponderance here, the doctrine of estoppel cannot be successfully invoked.
The decree finds that when the survey was made, Stanley paid back $72.59 on account of the shortage occasioned by omitting from the deed that portion of the north-west fractional quarter of section 5 which was included in the sale, and decrees that Marshall pay back that $72.59, with interest, and that Stanley and. wife, upon payment thereof, execute the deed directed to be made. It is objected that neither bill nor proof supports this finding. As appellant does not question the propriety of the action of the court in reforming the deed by including therein the part of the north-west of section 5 which was owned by Stanley, the error in this respect, if any exist, is a harmless one. It insures to the appellant the return of his money.
The action of the court below in apportioning the costs is assigned as error. Nothing is said in support of this assignment except that appellant should not have been required to pay any part of the costs. It does not appear to us that the chancellor abused his discretion in making this apportionment.
The decree of the circuit court of Henderson county will be affirmed.
Decree affirmed.