66 Ark. 155 | Ark. | 1899
(after stating the facts.) This is an action by T. J. Webb to correct an alleged mistake in a deed from W. C. Webb to M. P. and T. J. Webb. The defendant, W. S. Nease, who claims the land as residuary devisee of Mrs. M. P. Webb, denies that there was any mistake, and asks that his title to the land be quieted. We concur in the ruling of the chancellor refusing to correct and reform the deed. While the facts and circumstances in proof may be sufficient to arouse a suspicion that this deed, as drawn, did not reflect the intention of the parties, still the evidence bearing on that point is in our opinion not sufficiently clear to justify a reformation of such deed. As stated by the chancellor, when it is clear that a deed or other instrument does not express the intention of the parties, owing to the accidental omission or insertion of a material stipulation, equity can reform the instrument, and correct the mistake; but, to justify such a decree of reformation, the evidence must be clear and convincing. The other two parties to the deed in this case are dead, the evidence bearing on the question of a mistake in the deed is contradictory, and such mistake, if any existed, not clearly established. The prayer of the complaint to that extent was properly refused.
But we are not able to agree with the learned special chancellor in his holding that the effect of the written agreement between W. C. Webb and M. P. and T. J. Webb, and the deed of W. C. Webb to M. P. and T. J. Webb, was to vest an estate in fee to Mrs. Webb to an undivided one half of the land described in the deed from W. C. Webb, and that after the oral agreement of partition, followed by possession, she was entitled to a conveyance of the legal title to the portion allotted. The grantor, W. C. Webb, owned only an undivided half interest in such land. He conveyed this interest to M. P. and T. J. Webb jointly. They each took by this deed from W. C. Webb a half of the interest in such land owned by him. That is, each of them took by this deed a one-fourth interest in the 200 acres of land described in such deed. The fact that they subsequently, by oral agreement, partitioned this 200 acres between them, each of them taking about one hundred acres, does not, in our opinion, show an intention to vest in Mrs. Webb the title to all that portion of the tract allotted to her. If the deed of W. C. Webb only conveyed her an undivided i of the 200 acres, and it could not have conveyed more, then the other | of the 200 acres was owned by T. J. Webb. But this was subject to a right of Mrs. Webb to homestead and dower. She had relinquished such interest in 150 acres to W. C. Webb in consideration of his conveyance to her, but she had not relinquished the same in the 200 acres. When it is ascertained that she had certain interests in this land, then the oral agreement of partition made with the other party interested in the land should, in the absence of evidence to the contrary, be attributed to a recognition and allotment of -the interests that she actually owned, and not be allowed to create a new estate in her. The plaintiff testified that, in making the partition, it was expressly understood between him and his mother that she took only a life estate in the land. No deeds wei’e passed between him and his mother, and his land was separated from hers only by a “turning row,” as he calls it. We see in this partition of land between him and his mother nothing inconsistent with his claim of a fee in said laud, and the case must be determined by the actual rights of the parties in this land at the time of the partition, as we think they were unaffected by such partition and subsequent possession. The dower and homestead rights of Mrs. Webb in this land passed out upon her death, leaving to be disposed of by her will the undivided interest which she purchased from her son W. C. Webb. The appellee, W. S. Nease, is entitled to this interest as the residuary legatee of his mother, and his title to the same should be quieted. The decree to that extent is right, but for the error in declaring said W. S. Nease to be the owner of the whole tract of land allotted to his mother the decree is reversed and remanded, with an order that a decree be entered settling the rights of the parties, as set out in this opinion.