Allen v. Yeater.

CourtSupreme Court of West Virginia
Citation17 W.Va. 128
PartiesAllen v. Yeater.
Decision Date20 November 1880

1. Equity relieves against a material mistake of facts, as well as against fraud, in a deed or contract in writing.

2. Parol evidence is admissible to prove such mistake, though it is de-

3. The evidence to show such mistake in a written instrument must be clear and strong, so as to establish the mistake to the entire satisfaction of the court.

4. A covenant in a deed must be construed most strongly against the grantor.

5. Warranties of title in conveyances are either " general'1 or "special."

If the grantor would limit his liability, he must insert a covenant of " special warranty." If he does not do so, but conveys with "warranty," the covenant must be regarded as a "general warranty."

Appeal from and supersedeas to a decree of the circuit court of the county of Doddridge, rendered on the 21st day of May, 1877, in a cause in said court then pending, wherein Israel B. Allen was plaintiff, and Jacob Yeater was defendant, allowed upon the petition of said Yeater.

Hon. C. S. Lewis, late judge of the second judicial circuit, rendered the decree appealed from.

Johnson, Judge, furnishes the following statement of the case:

The plaintiff, Allen, filed his bill in May, 1871, in the circuit court of Doddridge county, to correct a mistake nied in the answer. in a deed from himself to the defendant, Yeatcer, and to enforce his lien against the tract of land so conveyed for" the residue of the purchase-money. He alleged in his bill among other things, that the land amounting to about one hundred and ninety-five acres was conveyed to him by his father, in which deed was an express reservation of a "storehouse and lot;" that by the mutual mistake of himself and his grantee, Yeater, the said " storehouse and lot" were not reserved in the sale and conveyance to Yeater. He prays that the mistake be corrected, and a decree be rendered him for the balance of his purchase-money, and that the land may be sold to pay the same, &c.

Yeater promptly filed his answer, in which he denies the mistake, and insists, that he bought and intended to buy, and that Allen sold, and intended to sell him, the said "storehouse and lot." He says, that "at the time he made the purchase of said land, and for several years before, the widow and heirs of Jesse J. Allen were living in the storehouse mentioned in complainant's bill, but respondent did not know that he owned or claimed it; nor did complainant say one word to respondent about said storehouse and ground on which it stood, or anything about or in reference to it, either before the purchase or at the time of completing his contract and executing his title-bond as aforesaid; nor did he ever mention a word to respondent in reference to said storehouse and lot of ground, until after he had paid complainant the $1,500.00 payment."

Respondent further says, that " complainant, when he made the said contract with respondent, spoke of and took pains to reserve an acre of ground, where the family burying ground was, and also some rye that was growing on said land, and was particular to specify the same in said title-bond, but never once mentioned said storehouse and lot; and respondent would long since have paid him up the whole of the purchase-money, if he could or would have complied honestly with said con- tract." Respondent charges that the deed to him was not executed according to the contract, as the contract provides for a " deed of general warranty," and the deed executed to him contained a covenant of " warranty" only, and prays that the deed may be corrected by the plaintiff.

Many depositions were taken and read in the cause; and on the 21st day of May, 1877, the court entered a decree in the cause, correcting the mistake set out in the bill, and providing for the enforcement of the lien for the residue of the purchase-money, giving costs against the defendant and omitting to require the deed to be corrected in the covenant of warranty.

From this decree an appeal was granted, also supersedeas to the same. Such portions of the depositions as are deemed material to the deision of the cause will be referred to in the opinion.

P. Gano, for appellant, relied upon the following authorities:

2 Story Cont. §§ 727, 728; 2 Parsons Cont. 656; Smith Eq. 255, § 16; 2 Story Eq. §§ 770a., 779; 4 Rand. 355; 14 Johns. 32; Smith Eq. 229, 230 and cases cited*; Id. 255; Code, ch. 72, 13, 15; 6 Call 335; Id. 187; Id. 204; Id. 368; 1 Rand. 408; 6 Pet. 389.

W. L. Cole and J. Dallas Ewing, for appellee.

Johnson, Judge, delivered the opinion of the Court:

It appears from the record, that at the time the decree complained of was rendered, all the lands, which the grantee claimed to have purchased, had been conveyed to him, and as to the storehouse and lot, the court held that it was included in the deed by mistake of both parties, and corrected the mistake. It is insisted by the appellant's counsel, that parol evidence was inadmissible to show that there was any mistake in the written contract. The law on the subject is well settled. Equity relieves against a material mistake of fact, as well as against fraud, in a deed or contract in writing. Parol evidence is admissible to prove such mistake, though it is denied in the answer. The evidence to show such mistake in a written instrument must be clear and strong, so as to establish the mistake to the entire satisfaction of the court. Gillespie et ux v. Moon, 2 Johns. Chy. 585; Keisselbrack v. Livingston, 4 Johns. Chy. 144; Nevins v. Dunlap, 33 N. Y. 676; Wemple v. Stewart, 22 Barb. 154; Ruffner v. MeConnell, 17 I11. 212; Western Mining and Manufacturing Company v. Peytona Cannel Coal Company, 8 W. Va. 407.,

In Wemple v. Stewart, supra, it was held, that "a written contract in the absence of fraud can only be reformed, where it is shown by satisfactory proof, that there is a plain mistake in the contract by the accidental omission or insertion of a material stipulation contrary to the intention of both parties by expressing something different in substance from the truth of that intent and under a mutual mistake."

In Ruffner v. MeConnell, supra, it was held:" We recognize mistake in fact as a ground for equitable jurisdiction, but relief will only be granted upon clear and satisfactory proof of the mistake in fact. * * * But this does...

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