33 Minn. 124 | Minn. | 1885
On May 31, 1851, Robert Smith, the ancestor of defendants, executed a contract to convey, free of incumbrances, to Joel
The théory of the plaintiffs seems to be that if a deed of conveyance, executed in the performance of an executory contract to convey, differs from such contract as to the amount of land conveyed, a case is thereby made out for reforming the deed. Such, we apprehend, is not the law. An executory contract, until fully performed, is subject to such alterations as the parties may agree upon; but when it is •fully consummated, and a deed made in pursuance of it is accepted, it is presumed that the deed gives full expression to the final purpose of the parties; and if the deed differs from the contract, the deed itself, being the last express agreement on the subject, would he prima facie evidence that the change had been mutually agreed on. Hence the mere fact that the contract and deed do not agree, will not authorize the interference of a court to correct the deed. This can only be done when other proof is given that the discrepancy has arisen through fraud or mistake. Long v. Hartwell, 34 N. J. Law, 116; Rowley v. Flannelly, 30 N. J. Eq. 612; Hileman v. Wright, 9 Ind. 126; Crotzer v. Russel, 9 Serg. & R. 77; Seitzinger v. Weaver, 1 Rawle, 377; Stecker v. Skimer, 5 Whart. 452; Wilson v. McNeal, 10 Watts, 422; Jones v. Wood, 16 Pa. St. 25; Houghtaling v. Lewis, 10 John. 297.
There is not a particle of evidence that Smith omitted this block by mistake, or that he ever supposed that it was to be included in the deed. The only scintilla of evidence tending to show a mistake on the part of the grantees is the very equivocal statement of Baker, that “he first learned that this property was omitted from the Smith deed in 1879.” The reason why this block was not included in the deed, and was probably never intended to be included in the contract, is perfectly evident. As found by the court, it was intended by the original owners, Smith & Whitney, when they laid out and platted the land, to dedicate this block to public use as a public square. And it was their understanding, at the time this contract and deed were executed, that it had been so dedicated; all of which facts were well known to Baker and Whitney. This furnishes the best of reasons for the conclusion that it was never the understanding of the parties that the block was covered by the contract, or was to be included in the deed, and amply justifies the finding of the court to that effect. It is highly improbable that it was ever in the minds of the parties that Smith should convey, with covenants of title, property which was supposed to have been already dedicated to public use forever. The fact that it was understood that the property had been thus dedicated, makes the recital in the deed, that the property conveyed comprised all the grantor’s interest in that addition, entirely consistent with the con-
Order affirmed.