181 S.W.2d 481 | Ark. | 1944
Lead Opinion
Appellant filed suit in the circuit court against appellees, who are his brothers and sisters, for a breach of covenant of warranty contained in a deed executed on February 14, 1923, by all of the appellees, except LeRoy Wood and Edgar Wood, who executed it at a later date. By the deed mentioned appellees conveyed to appellant one hundred and sixty acres in Clark county, Arkansas, inherited by appellees and appellant from their father, W. T. Wood, who died intestate in 1913, seized and possessed of the land in question, part of which was his homestead, and leaving surviving him his widow, Frances Josephine Wood, and eight children. The suit was transferred to equity by the circuit court on its own motion. No objection to the transfer has been raised. The cause was heard by the chancery court on the pleadings and upon testimony taken in open court. The lower court rendered a decree, dismissing the complaint for want of equity, to reverse which decree this appeal is prosecuted.
The evidence reflects that after the death of W. T. Wood two of his sons, appellant Albert Wood and appellee Andrew J. Wood, continued to live on the farm *520 with their mother, and neither her dower nor her homestead was ever assigned.
Appellee, Andrew J. Wood, after the death of his father, bought the interests of several of his brothers and sisters in the land owned by their deceased father and received deeds from some of them, but these deeds were never recorded.
Appellant served as a soldier in the first World War, and then returned to the farm and continued farming operations with his brother, appellee Andrew J. Wood. Sometime in 1920, appellant bought the interest of Andrew J. Wood in the land. Appellee, Andrew J. Wood, moved away, and appellant remained on the land with his mother, Mrs. Frances Josephine Wood.
Appellant completed payment of the purchase money of the land in 1922, and in 1923 the deed herein involved was executed. In order to minimize the amount of recording fees the parties decided to destroy the deeds previously made by some of the brothers and sisters to appellee, Andrew J. Wood, and have these brothers and sisters join with appellee, Andrew J. Wood, in the execution of the deed directly to appellant, Albert Wood. The widow, Frances Josephine Wood, did not sell appellant her interest in the land and did not sign the deed, which was on a printed form, and purported to convey the entire interest in the land, described according to government subdivisions with the usual covenant of warranty.
After he obtained the deed from his brothers and sisters, appellant married and brought his wife to live on the land. The widow continued to live on the land with appellant and his wife for a short time, but on account of family discord it became impossible for her to live there longer, and in the spring of 1925 she removed from her home and thereafter lived with other members of her family. Appellant, after his mother moved away, sold timber from the land and his mother then brought suit against appellant and the vendee of the timber for the value of the timber, and recovered judgment for a *521
total of $1,388.59. Wood v. Wood,
Appellant testified that he bought the entire interest in the land. The testimony of some of the appellees, however, was to the effect that the existence of their mother's interest in the land was discussed and recognized by all parties at the time the trade was made, and that appellant insisted that it was not necessary to wait until she died before the heirs conveyed their respective shares. One of them testified that while the deed was being signed the justice of the peace advised the parties that they could not beat their mother out of her dower; that appellant understood this and talked about it frequently. Another appellee testified: "I wasn't supposed to make a deed until after my mother died. All I ever sold was my interest." Two of the heirs testified that they understood they were selling the entire interest.
To reverse the decree of the lower court, which in effect held that appellees in reality only sold and intended to convey to appellant their respective shares as heirs of their father in the land, appellant urges that parol evidence to vary the contents of the deed was not admissible. The rule that parol evidence is ordinarily not admissible to vary or contradict the terms of a written instrument is well established. But it is equally well settled that a court of equity may look through the form of the contract and ascertain what the real transaction was, and may correct a mutual mistake made in the drafting of the contract so as to make the contract reflect the real intention of the parties at the time of the execution thereof. In doing this the court does not receive parol testimony to vary the contract, but to show what the contract really was and to permit the correction of mutual mistake made by the parties in committing the contract to writing. *522
In the case of Clark v. Root,
A somewhat similar situation was presented in the case of Harton v. Durham,
Likewise, in the case of Tenenbaum v. Gerard B. Lambert Company,
In the case of Ingraham v. Baum,
The New York Court of Appeals in the case of Bush v. Hicks,
The Supreme Judicial Court of Massachusetts, in dealing with a somewhat similar situation, in the case of Wilcox v. Lucas,
In the case of Combs v. Combs,
This statement of the law is made in 21 C.J.S., Covenants, 38, p. 908: "It has also been held that where by mistake land was included in a deed which the grantor did not own, and which the grantee did not intend to buy, such fact was an equitable defense to an action for a breach of the covenant of warranty in the deed."
The lower court's decree was necessarily based on a finding that there was a mutual mistake when the appellees executed and the appellant accepted from them a deed conveying an interest in the land — the dower and homestead interest of the widow — which they did not own. While the appellant's knowledge of this outstanding interest in the land which he was buying was not in itself sufficient to bar appellant in a suit on the covenant of warranty in the deed, it was a strong circumstance to support the chancellor's finding that appellant did not in fact buy this interest from appellees. "Such knowledge (knowledge by grantee of a defect in title) may be considered, however, in determining whether it was intended that the covenant should extend to such defect." 21 C.J.S. 908. Other circumstances reflected by the testimony tended to show that under the real contract between the parties appellant bought and appellees sold only their interests and shares, as heirs of their father, in the land described in the deed. If this was the actual contract between the parties, then a mutual mistake, such as equity should correct, was made in the execution of a deed purporting to convey an interest in the land that appellant did not intend to purchase and appellees did not own or intend to convey. *525
The lower court's finding on this question of fact not being against the weight of the testimony, it must be affirmed. It is so ordered.
Dissenting Opinion
The opinion of the majority is based on the assumption that appellees were entitled to have their deed to appellant reformed so as to describe the interest that appellees now claim they actually intended to convey. I respectfully dissent from the majority for the reasons herein set forth and discussed.
I. The Appellees Did Not Plead Facts Sufficient To Make A Case For Reformation.
Appellant sued for damages for breach of covenant of warranty. In the original answer appellees (1) made a general denial, and (2) claimed that appellant knew that appellees were only selling their interest in the land. In their first amendment, appellees pleaded no consideration paid them for the deed. In their second amendment, appellees pleaded duress. In all of these pleadings, appellees prayed "that plaintiff take nothing for judgment . . . and for costs . . . and for all other relief." Thus there were no facts pleaded that made a case for reformation. In Bray v. Woodley,
Even if it be said, that under the authority of Conley v. Archillion,
II. Appellees Did Not Produce the Quantum of Proof Necessary to Justify a Decree of Reformation.
In numerous cases, seeking reformation, we have held that mere preponderance of the evidence will not justify a decree of reformation; and that the evidence for reformation must be "clear, unequivocal, and decisive." Cherry v. Brizzolara,
Here is the sum total of the evidence of both sides on reformation: Mrs. Mary Crowley, Andrew J. Wood, and LeRoy Wood testified they were only selling their interest in the land when they signed the deed. Albert Wood testified that he was getting the entire interest just as the deed stated. Edgar Wood and Mrs. Katie Cox testified that they were selling the entire title and they did not deny liability for the breach of the covenant of warranty. Roy Thompson, a disinterested witness, testified that he had heard Mrs. Mary Crowley say that in selling the land to Albert Wood they sold the entire title. Dan Smith testified that Albert Wood paid, as consideration for the land, all that the entire title was worth.
Thus, as to reformation: the grantee, Albert Wood, and two of the grantors, (Edgar Wood and Mrs. Katie Cox), testified that the deed was intended to convey the entire title. On the other hand three of the grantors, (Mrs. Mary Crowley, Andrew J. Wood, and LeRoy Wood), testified that the deed was intended to convey less than the entire title; but one of these grantors, (Mrs. Mary Crowley), was contradicted by a disinterested witness, (Roy Thompson). Finally, Dan Smith testified that the grantee paid a price which, at the time of *527 the conveyance, was a fair price for the entire title. With the record in this shape it seems clear to me that the appellees did not produce the quantum of proof necessary to justify a decree for reformation.
Therefore, for the reasons herein stated, I respectfully dissent from the majority.