Birchett v. Anderson

• Decision Date: 23 March 1931
• Docket Number: 29278
• Court: Mississippi Supreme Court
• Parties: BIRCHETT v. ANDERSON et al

133 So. 129

160 Miss. 144

BIRCHETT v. ANDERSON et al

No. 29278

Supreme Court of Mississippi

March 23, 1931

Division B

1 EVIDENCE.

Where it did not appear vendor was not acting in good faith in pointing out boundaries of lots to purchasers, good faith would be presumed.

2. REFORMATION OF INSTRUMENTS. Deed could be reformed to make it conform to intention regarding boundary, although parties had written into deed exact description of property which they intended it should contain.

Original lot seventy-three feet wide was intended by owner to be divided into two equal lots, with ten-foot driveway between residences to be erected, using five feet of each lot, but residences were built so that lot subsequently purchased by defendant, contributed only one and one-half feet, and lot subsequently purchased by complainant contributed eight and one-half feet to driveway. However, before purchasing lots complainant and defendant went upon premises with vendor and viewed lots, and both of them distinctly understood they were purchasing up to center of driveway, and no more, although deeds described each lot as being thirty-six and one-half feet wide.

HON. J. L. WILLIAMS, Judge.

APPEAL from chancery court of Warren county, HON. J. L. WILLIAMS, Judge.

Suit by George K. Birchett against Mrs. Bertha C. Anderson and another, in which defendants filed a crossbill. From a decree for defendants, complainant appeals. Affirmed.

Affirmed.

Canizaro & Canizaro, of Vicksburg, for appellant.

It is immaterial whether actual fraud be imputed to the seller. The result is the same, if the transaction was the result of a mutual mistake. If the terms are stated according to the intent of the parties, but there is an error of one or both in respect of the thing to which these terms apply its identity, situation, boundaries, title, amount, value, and the like--then it is elementary that a court of equity may grant appropriate relief, provided the fact about which the mistake occurs was a material element in the transaction.

Alexander v. Meeks, 132 Miss. 298, 96 So. 101; Allen v. Luckett, 94 Miss. 868, 48 So. 186; Oswald v. McGehee, 28 Miss 340.

Whether the false representation was made with a knowledge that it was false, or without a knowledge that it was true, is wholly immaterial. If, knowingly, he represented what was not true there can be no doubt he should be bound to make reparation.

Rimer v. Dugan, 39 Miss. 477; Davis v. Heard, 44 Miss. 50.

The rule is that a party seeking a reformation of a deed, the recitals of which are definite and ambiguous, must establish, not only by the preponderance of the testimony, but practically to the exclusion of every other reasonable hypothesis, that mutual mistake, fraud, or error occurred in the making of the instrument sought to be reformed.

Jones v. Jones, 88 Miss. 784.

The mistake of a person will not be permitted to benefit him at the expense of those who were injured by the mistake. To attempt to take advantage of a mistake, however innocent, is fraud in the eyes of equity.

23 R. C. L., page 3318, sec. 31.

As a general rule a party will not be given relief against a mistake induced by his own culpable negligence, as against one who was free from fault, as where he has failed to avail himself of means of knowledge of the facts, or has negligently failed to make inquiry. Especially is this so where others may be prejudicially affected.

21 C. J., page 88, sec. 64.

Hirsh, Dent & Landau, of Vicksburg, for appellees.

It is not what description the parties intended to write but what property the parties intended to have embraced in the description they used.

Brimm v. McGee, 119 Miss. 52, 80 So. 379.

To hold that a court of equity could not correct mistakes for the reason alone that the parties used the terms they actually intended to use would be to curtail its powers to a hitherto unheard of extent. Most mistakes of fact in conveyancing, except those caused by clerical misprision, arise in cases when descriptive terms are intentionally employed under the mistaken impression that they apply to the property sought to be conveyed.

Miles v. Miles, 84 Miss. 624, 37 So. 112.

OPINION

Anderson, J.

Appellant filed his bill in the chancery court of Warren county against appellees, Mrs. Bertha C. Anderson and J. H. Short, to have established the true line between appellant's residence lot, and that of appellee, Mrs. Anderson, situated in the city of Vicksburg; and to recover damages for an alleged encroachment by appellee Mrs. Anderson upon appellant's lot.

Appellees answered the bill, making the answer a crossbill, praying for the reformation of the deed of appellee Mrs. Anderson to her lot, so as to make it conform to the intention of the parties. Appellant answered the crossbill, and the cause was tried on the pleadings and proofs, resulting in a final decree in favor of appellees; from that decree appellant prosecutes this appeal.

Drummond street, in the city of Vicksburg runs north and south. Appellee Short owned a lot on the west side of the street, with a frontage thereon of seventy-three feet, by one hundred and fifty feet deep; putting it differently, the lot faced east on Drummond street seventy-three feet, and ran back west one hundred and fifty feet. Appellee Short employed a contractor to build two residences on this lot, duplicates of each other, one to be built on the north half of the lot, the other on the south half, both facing east on Drummond street. He instructed the contractor to divide the lot into two lots of equal frontage and depth, by an east and west line; and to leave a ten-foot driveway between the residences for the common use of the owners. The center line of this ten-foot driveway was to be the dividing line between the two lots. If the lots had been so divided, each would have had a frontage of thirty-six and a half feet, by one hundred and fifty feet deep. The houses to be built were of such dimensions as that each covered practically all the lot on which it stood, except what was supposed to be its five-foot contribution to the common driveway.

In constructing the two residences the contractor placed the south wall of the residence on the north lot three and a half feet over its five-foot contribution to the common...