| Kan. | Jan 15, 1894
The opinion of the court was delivered by
It appears from the findings of fact of the trial court that the deed to the land mortgaged, executed on the 9th of February, 1889, by William James and Eudora K. James, his wife, to Albert H. Elliott, contained the following:
“And said grantors, for themselves, their heirs, executors, or administrators, do hereby covenant, promise, and agree, to and with said party of the second part, that at the delivery of these presents they are lawfully seized, in their own right, of an absolute and indefeasible estate of inheritance, in fee simple, of and in all and singular the above-granted and described premises, with the appurtenances; that the same are free, clear, discharged and unincumbered of and from all former*555 and other grants, titles, charges, estates, judgments, taxes, assessments, and incumbrances, of what nature or kind soever, except as to all claims, mortgages and interest of whatsoever nature of record this 9th day of February, 1889, which said -assumes and agrees to pay, and that they will warrant and forever defend the same unto said party of the second part, his heirs and assigns, against said parties of the first part, their heirs, and all and every person or persons whomsoever, lawfully claiming or to claim the same.”
By the mutual mistake of all parties to the deed, the name of Albert H. Elliott was omitted in that part of the deed by which he was to assume and pay “all claims, mortgages and interest of whatsoever nature of record on the 9th day of February, 1889.” Where an agreement has been actually entered into, but the contract, deed or other instrument in its written form does not express what was really intended by the parties thereto, equity has jurisdiction to reform the written instrument so as to conform to the intention, agreement and understanding of all the parties. (Claypoole v. Houston, 12 Kan. 324" court="Kan." date_filed="1874-01-15" href="https://app.midpage.ai/document/goggin-v-kansas-pac-ry-co-7883578?utm_source=webapp" opinion_id="7883578">12 Kas. 324.)
Under the pleadings, the evidénce, and findings of the trial court, the deed of the 9th of February, 1889, from James and wife to Elliott should have been reformed in accordance with the intention, agreement and understanding of the parties, and, if this had been done, William James and wife would have been relieved from the payment of any deficiency arising upon their mortgage after the proceeds derived from the sale of the mortgaged property had been applied in satisfaction thereof, if the same could have been collected from Elliott. If the deed had been reformed in accordance with the intention, agreement and understanding of all the parties, Susan A. Green and L. D. Stephenson would have been entitled to personal judgments against Elliott, and could have collected from him any deficiency arising upon their mortgages after the sale of the mortgaged premises. (Burton v. Larkin, 36 Kan. 246" court="Kan." date_filed="1887-01-15" href="https://app.midpage.ai/document/burton-v-larkin-7886835?utm_source=webapp" opinion_id="7886835">36 Kas. 246, and eases cited.) In Holcomb v. Thompson, 50 Kan. 598" court="Kan." date_filed="1893-01-15" href="https://app.midpage.ai/document/holcomb-v-thompson-7889139?utm_source=webapp" opinion_id="7889139">50 Kas. 598, Thompson was relieved of all personal liability because there was no allegation of any
The court erred in its finding that the land conveyed by James to Elliott was, at the date of such conveyance, incumbered to the amount of $4,356. On February 1, 1889, the total incumbrance upon the land was $4,071 only. This included the $2,400 due Susan A. Green upon her mortgage, and $1,671 due to L. D. Stephenson. At this time the interest on Susan A. Green’s mortgage seems to have been paid up to March 1, 1889. In addition to assuming the mortgages of record on the 9th day of February, 1889, Elliott, as additional consideration for the purchase of the land, paid James $500. The land purchased by Elliott was of the value of $4,500, as found by the trial court. Some of its witnesses estimated its value at $5,000. If Elliott had paid all of the mortgages as he agreed to do, the land would have cost him $4,571 only. It was worth about that amount. Stephenson was also entitled, upon the findings of fact, to judgment against Elliott for the full amount due upon his mortgage.
Our attention is called to the refusal of the court to appoint a receiver, upon the application of L. D. Stephenson, made on the 25th of October, 1889. At that time there was a showing made to the court that the land was worth $4,800, and that Albert H. Elliott, who had agreed to pay the mortgages, was solvent, and therefore we do not perceive any error on the part of the court in denying the application. But even if the court abused its discretion in refusing to appoint a receiver, the question now is of little practical importance.
The judgment in favor of Albert H. Elliott for costs will be reversed, and the cause remanded, with direction to the district court to render personal judgments against Albert H. Elliott in accordance with the views herein expressed.