Barnhardt v. Hansen
| Decision Date | 20 December 1922 |
| Citation | 211 P. 438,36 Idaho 419 |
| Parties | J. B. BARNHARDT, Appellant, v. NETTIE HANSEN, Formerly NETTIE TOWNSEND, and Her Husband, OLE HANSEN, Respondents |
| Court | Idaho Supreme Court |
REFORMATION OF DEED-WHEN ANSWER CONCLUSIVE.
1. In an action to reform a deed, where the defendant answers by way of cross-complaint and alleges that said deed of conveyance, though absolute in form, was executed and delivered with the intention by both parties that it should be a mortgage, and it appears from the instrument that the description of the premises intended to be conveyed is incomplete, affirmative allegations in the cross-complaint to this effect are conclusive evidence that the defendant intended to execute a conveyance of the premises.
2. Where a deed is drawn with the intention of carrying out a previous agreement to convey real property, and by mistake of the scrivener such instrument does not carry out such intent equity will correct the error and reform the deed to conform to the intention of the parties, where such intention clearly appears from the entire record.
APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. Robert M. Terrell, Judge.
Action to reform a deed. From judgment for defendant, plaintiff appeals. Reversed.
Reversed and remanded, with instructions. Costs awarded to appellant.
William Edens, for Appellant.
Wherever an instrument is drawn with the intention of carrying into execution an agreement previously made, but which by mistake of the scrivener, whether as to law or fact, does not fulfil the intention, but violates it, there is ground to reform the instrument. (35 Cyc. 910.)
In general, a misdescription in a deed will be corrected and without hesitation where the mistake is apparent on the face of the deed. (34 Cyc. 936.)
The case is strengthened where the grantee goes into possession under the deed containing an erroneous description. (34 Cyc 937.)
A conveyance which omits the name of the county and state in which the lands to be conveyed are situated may be reformed. (Greene v. Dickerson, 119 Ala. 346, 72 Am. St. 920 24 So. 422; 18 C. J. 413; Collins v. Brown, 19 Idaho 360, 114 P. 671.)
Baird & Davis, for Respondents, file no brief.
This is an action to reform a deed. It appears that about October 30, 1915, respondent Nettie Hansen, who was then Nettie Townsend, executed to appellant a warranty deed, wherein the property intended to be conveyed was described as:
"All that certain lot, piece or parcel of land situate, lying and being in the County of Bannock, State of Idaho, bounded and more particularly described as follows, to-wit: The Southerly one half of Lot Four (4) and the Northerly one half of Lot Five (5), Block 266, containing 4200 square feet more or less, according to the government survey made thereof, and returned to the United States Land Office by the Surveyor General."
The complaint alleges that the description is incomplete and does not conform to the intention of the parties, in that it fails to describe the premises as being within the town site of the city of Pocatello, and also that the description, in order to be definite and certain, should have been by metes and bounds, and prays that the deed be reformed in this respect. It is further alleged that appellant has sought to have respondent execute a quitclaim deed, properly describing the premises intended to be conveyed, but that respondent has refused to do so except upon the payment of an additional consideration.
Respondent demurred to this complaint, which demurrer was overruled, and she then filed a pleading designated as "answer and cross-complaint," wherein she denies the material allegations of the complaint, but affirmatively alleges that it was the intention of the parties to the instrument that it should be a mortgage instead of an absolute conveyance, the allegation being that she:
" . . . executed and delivered to plaintiff a warranty deed in fee simple of said premises described in paragraph One of plaintiff...
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