59 Kan. 181 | Kan. | 1898
The plaintiff in error, W. F. Thayer, was the owner of a mortgage given by the defendants in error, Emeline and Robert M. Hunter, on the southeast quarter of section 29, township 29, range 5 east, in Butler county. He filed a petition to foreclose it, making the defendant in error, W. P. Knote, a party. Knote in his answer alleged among other things that he was the owner of the mortgaged premises. The court made a general finding that “ all the allegations in plaintiff’s petition are true as therein alleged ” ; but by mistake of plaintiff’s counsel who prepared the journal entry of judgment, and the oversight of defendant’s counsel who approved it, the land was misdescribed as the northeast quarter of section 29, township 29, range 5, east. Following this judgment, the clerk issued an order of sale to the sheriff, in which the land was likewise misdescribed as the northeast quarter, and the sheriff advertised and sold it by such erroneous description, and also in his return of sale similarly
The foreclosure sale did not satisfy the judgment in full by nearly $1800 ; and about two years after the sale the defendant in error, W. P. Knote, purchased the deficiency judgment for $150. This purchase was made through the Johnson Loan & Trust Company, the agent of Thayer. Prescott, who as the agent of Thayer purchased the land at the foreclosure sale, testified that Knote gave to him as his reason for desiring to purchase the deficiency judgment that “he was under some obligation to the Hunters and that he did not want the judgment standing against them.” Knote did not testify, and there is no evidence in the record contradictory of this statement by Prescott of Knote’s reasons for the purchase. The negotiations for the purchase of the judgment were evidenced by letters written by the Johnson Loan & Trust Company, agents for Thayer, to one R. W. Campbell, who in turn communicated their contents to Knote. These letters show that Knote at first desired, not only an assignment which -would carry the deficiency judgment, but also the original note upon which it was founded ; and that this form of assignment was refused for the reason that the note and mortgage had been canceled by the judgment rendered in the foreclosure sale, and such cancellation entered upon the
“In the District Court of Butler County, Kansas.
“W. F. Thayer, Plaintiff, v. Emeline Hunter et al., Defendants. Assigment. Judgment rendered November 28, 1890, for $2068.30, and costs.
" For value received I, W. F. Thayer, plaintiff in the above entitled cause, do hereby assign, transfer and set over unto W. P. Knote the judgment rendered in the above entitled cause in my favor against Emeline Hunter and Robert M. Hunter, and for any and all balance that may be due thereon, and any and all rights existing or that may arise thereunder. All done without recourse on me.
“Witness my hand at Concordia, New Hampshire, on this 31st day of July, 1893. W. F. Thayer.”
Upon procuring the assignment, Knote, as assignee, entered satisfaction of the deficiency judgment on the records of the court, and also entered satisfaction of the mortgage' upon the records in the office of the register of deeds.
In November following the execution of this assignment, Thayer, the plaintiff in error, having discovered the mistakes of land description existing in the record of his foreclosure proceeding, brought suit to correct the description in the journal entry of judgment, and to set aside the sheriff’s sale of the misdescribed land, and for an order to sell it by its correct description. To this the Hpnters, the mortgagors, Prescott, the purchaser at the mortgage sale, and Knote, the assignee of the deficiency judgment, were made parties. Knote answered by setting up his purchase and instrument of assignment, and also alleged the two and
Neither the petition nor the reply of plaintiff prayed for a rescission of the instrument of assignment, and, so far as the above stated allegations of the reply are concerned, they constituted what in pleading is called “ a departure.” They departed from the statement of the cause of action set out in the petition and alleged new and independent grounds for relief against the defendant Knote. However, no objection upon this score was made on the trial of the case, nor has any been made to us in the briefs or oral argument of counsel, and we shall therefore treat the new matter set out in the reply as though it constituted a part of the petition. While the plaintiff did not, either in petition or reply, in terms pray for a rescission of the instrument of assignment, he did, in the reply, tender back to the defendant Knote the money paid for the purchase of the assignment, and the interest on the same, and pray that the court order that it be received in full of Knote’s interest. The right to have this done necessarily involves a rescission of the contract, and we shall therefore treat the pleadings as though a formal prayer for rescission had been made. The court below made a general finding in defendant’,s favor and rendered judgment thereon. From this
“ It is one of the unquestioned powers of a court of equity to correct mistakes ; it reforms instruments whenever it satisfactorily appears that by mutual mistake such instruments do not express the agreement of the parties ; and this power is not limited to the mere reformation of instruments executed by the parties. It extends to judgments, decrees, and in fact almost every, if not every, paper or document by which the rights of parties are affected.”
Other courts have held the same. McClure v. Bruck, 43 Minn. 305; Quivey v. Baker, 37 Cal. 465; Snyder v. Ives, 42 Iowa, 157.
Upon the trial of the case under consideration nearly all .the evidence was directed to the time at which the plaintiff’s attorney discovered the misdescription of land in the sheriff’s deed and the journal entry of foreclosure. This for the purpose of ascertaining whether the right of action had become barred by the Statute of Limitations. No offer was made to prove that the plaintiff himself knew of these errors of description. Passing by the question whether in
The right to equitable relief for the reformation of instruments and for their rescission rests on substan
The judgment of the court below is reversed with directions to proceed in accordance with this opinion.