Fanning v. Doan

• Decision Date: 25 May 1897
• Citation: 41 S.W. 742,139 Mo. 392
• Parties: Fanning, Appellant, v. Doan
• Court: Missouri Supreme Court

41 S.W. 742

139 Mo. 392

Fanning, Appellant, v. Doan

Supreme Court of Missouri, First Division

May 25, 1897

Appeal from Grundy Circuit Court. -- Hon. Paris C. Stepp, Judge.

Reversed and remanded (with directions).

A. H Burkeholder and George Hall & Son for appellant.

(1) Before the court will reform the deed on account of mistake the mistake must be made out by evidence which will strike the mind of the chancellor as free from reasonable doubt. Steinberg v. Ins. Co., 49 Mo.App. 255; Forrester v. Scoville, 51 Mo. 268; Atkison v. Henry, 80 Mo. 151; Tesson v. Atlantic Mutual Ins. Co., 40 Mo 33; Sweet v. Owens, 109 Mo. 1; Turner v. Shaw, 96 Mo. 22; Johnson v. Quarles et al., 46 Mo. 423. (2) The mistake, if any was made, was the mistake of Benajah Doan alone, and to authorize a court of equity to correct, the mistake must be mutual. Brocking v. Straat, 17 Mo.App. 296; Kennerty v. Etiwan Co., 53 Am. Rep. 669; Steinberg v. Phoenix Ins. Co., 49 Mo.App. 255; Tesson v. Ins. Co., supra; Roberts v. Derby, 68 Hun. 299; Bartlett v. Brown, 121 Mo. 353. (3) The deed from John Doan to Benajah Doan, and the deed from Benajah, under which defendant claims title, was voluntary, and without consideration, and courts of equity will not correct or reform the same. The party asking the relief must stand on some equity superior to that of the party against whom he seeks it. 15 Am. and Eng. Ency. of Law, 678, and note 2; Henderson et al. v. Dickey et al., 35 Mo. 120; Hoyt v. Oliver et al., 59 Mo. 188; Brocking v. Straat, 17 Mo.App. 296; Rhodes v. Outcalt et al., 48 Mo. 367; 1 Story's Eq. [9 Ed.], secs. 176, 164, 793d; The German Mutual Ins. Co. v. Grim, 2 Am. Rep. 341; Powell v. Powell, 73 Am. Dec. 724, and note; Perry on Trusts [4 Ed.], sec. 186; Ib., sec. 163; Lane v. Ewing, 31 Mo. 75; Jefferys v. Jefferys, 1 Craig & Phillips, 138, 144; Holloway v. Headington, 8 Simons R. 325. The same rule applies as to executions of powers and trusts. 1 Story [6 Ed.], secs. 177, 433; 2 Story [6 Ed.], secs. 706a, 787, 793a, 793b, 973, 974, note 1, and 987. (4) The grantor in the deed sought to be reformed, also Daniel Doan and Deborah, wife of appellant, all being dead and the heirs of Benajah Doan, the grantor, not being a party to the action, the deed can not be reformed. 15 Am. and Eng. Ency. Law, 681, and note 2; Adams v. Stevens, 49 Me. 362; Cady v. Potter, 55 Barb. 463; Custer v. Sitts, 6 Hun. 659; Adam's Eq. [6 Am. Ed.], 349; Story's Eq. [6 Ed.], sec. 165; Dennis v. Dennis, 4 Rich Eq. 307; Mayo v. Foster, 2 McCord Eq. 137; Daggett v. Ayer, 18 Alt. Rep. [N. H.] 169. (5) Defendant has been guilty of such laches as will prevent a recovery in the case. Jennings v. Brizeadine, 44 Mo. 332; Steinberg v. Phoenix Ins Co., 49 Mo.App. 255. (6) The testimony shows that respondent by her acts construed the deed to create a joint tenancy in herself and children. She should not be permitted to claim a reformation now, and the court should not disregard the construction she placed upon the instrument. Goodyer v. Carey, 4 Blatchf. 271; Gaslight Co. v. St. Louis, 46 Mo. 130; Jones v. DeLassus, 84 Mo. 541.

O. G. Bain and Harber & Knight for respondent.

(1) It is incumbent upon the party alleging the mistake to clearly establish it by satisfactory proofs, but he is not bound to establish the mistake beyond a reasonable doubt. Hutchison v. Ainsworth, 73 Cal. 452; Leitensdorfer v. Delphy, 15 Mo. 160. (2) The rule in this class of cases as to mutuality is that the court looks beyond the instrument sought to be reformed to the real agreement between the parties, and if the evidence satisfy the court as to what that agreement was, the reformation goes upon the theory that the real agreement has never been reduced to writing; the doctrine was well and early stated in the old case of Leitendorfer v. Delphy, 15 Mo. 160; Cassidy v. Metcalfe, 66 Mo. 519; Clayton v. Freet, 10 Ohio St. 544; Stone v. Hale, 52 Am. Dec. 187; Griffith v. Townley, 69 Mo. 13. (3) Appellant's counsel contend, in point 3 of their brief, that because the deed in this case was without consideration a court of equity will not correct or reform a mistake therein. The only difficulty is in the application of the general principle, that is, whether the agreement is executory or executed; the law may be stated, on the one hand, to be that a court of equity will not enforce an executory agreement based upon a voluntary consideration, while, upon the other, where a trust is created and is perfect and complete, the trust will be enforced, notwithstanding the consideration is voluntary. Lane v. Ewing, 31 Mo. 75; Leeper v. Taylor, 111 Mo. 312; Perry on Trusts [4 Ed.], secs. 97, 98, note 1 and 99; 1 Story, Eq. Jurisprudence, secs. 463, 434, 706 and 793b; Bunn v. Winthrop, 1 Johns. Ch. 329; Stone v. Hackett, 12 Gray, 227. (4) Appellant insists that because his wife Deborah, Daniel and the grantor Benajah are all dead, and not having been made parties, that therefore respondent is not entitled to the relief prayed. Appellant alleges that he is the sole representative of his deceased wife, in court claiming by and through her, who was a daughter of the defendant, and Benajah Doan was not a necessary party to this suit. He was simply a dry trustee of the legal title, holding it for the sole purpose of conveying it as the terms of his trust imposed; the conduit through which the title was to pass. He had no beneficial interest whatever in the property, and his representatives have no possible interest. Story's Eq. Pl. (1892) [10 Ed.], sec. 214a; Brandon v. Carter, 119 Mo. 581. But even if there "had been a defect of parties plaintiff or defendant," appellant can not now be heard to complain, for by plain statutory provision, such defect must be taken advantage of by demurrer or answer. R. S. 1889, secs. 2043-2047; Rogers v. Tucker, 94 Mo. 346; Edmonson v. Phillips, 73 Mo. 57; Donahue v. Bragg, 49 Mo.App. 273; Mississippi Planing Mill v. Presbyterian Church, 54 Mo. 520. (5) There is absolutely no foundation for the claim of laches in this case; the facts are, and the proof is, that respondent always thought as did her children, as did Benajah Doan to the day of his death, as did appellant himself for almost ten years, that respondent had a life estate under her deed, and in fact as did her attorney until the decision, differently construing the deed, on the former appeal of this case. Rubey v. Barnett, 12 Mo. 30; Landis v. Saxton, 105 Mo. 486; Johnson v. Smith's Adm'r, 27 Mo. 591.

Brace, J. Barclay, J., concur, in the conclusion reached on present appeal, not intending thereby to acquiesce in the decision on the former appeal.

OPINION

Brace, J.

This is an action of ejectment to recover the possession of an undivided one fifth of a tract of land in Grundy county, described in the petition. The undisputed facts in the case are, that in the year 1861, the defendant, who was then a widow having children then and still living, by two former marriages, intermarried with one John Doan. That they lived together as husband and wife on the farm of said John in said county from that time until his death; that there was born to them of the marriage four children, John, Daniel, Deborah, and Reeves S. That on the sixth of November, 1876, the said John Doan died, leaving the said Sarah, his widow, and her said children by him, surviving. That a short time prior to his death, to wit, on the fourth day of October, 1876, the said John Doan, Sr., by general warranty deed in which his said wife joined, conveyed his said real estate containing seven hundred and twenty acres to his brother Benajah Doan, of Muskingum county, Ohio, for the expressed consideration of $ 10,000. That in fact, no consideration whatever was paid for said deed, but the title was so placed in the said Benajah to be by him held in trust for the benefit of the wife of the said John, Sr., and his said children by her. That on the fourth of October, 1877, the said Benajah Doan for the consideration of $ 400 conveyed forty acres of said land to one Cyrus Gates of Grundy county, and afterward on the fifth day of March, 1878, the said Benajah in execution of said trust duly executed, acknowledged, and delivered the following deed for the remainder of said real estate, under which both parties claim:

"Know all men by these presents, that I, Benajah Doan, of the county of Muskingum, in the State of Ohio, for and in consideration of the sum of eight thousand ($ 8,000) dollars to me in hand paid by Sarah A. Doan and her heirs, per John Doan, of the county of Grundy, State of Missouri, the receipt whereof I do hereby acknowledge, have remised, released, and forever quitclaimed, and by these presents do remise release, and quitclaim unto the said Sarah A. Doan and her heirs by John Doan, their heirs and assigns forever, the following of said premises situate in the county of Grundy, and the State of Missouri: All of the east half of the southeast quarter of section number twenty-two (22); the northeast quarter of the northwest quarter, the south half of the northwest quarter, the southwest quarter of the northeast quarter, the west half of the southwest quarter, and the northeast quarter of the southwest quarter of section number twenty-six (26); the southeast quarter, the southeast quarter of the southwest quarter, the southeast quarter of the northwest quarter, and the south half of the northeast quarter of section number twenty-seven (27), all in township number sixty-two (62), of range number twenty-four (24), containing, according to the government survey, six hundred and eighty acres more or less, and all the estate, title, and interest of the said Benajah Doan, either in law or equity, of, in, and to said premises, together with all the privileges and appurtenances to the...