Brimm v. McGee

Citation80 So. 379,119 Miss. 52
Decision Date20 January 1919
Docket Number20485
CourtUnited States State Supreme Court of Mississippi
PartiesBRIMM v. MCGEE

Division B

1. VENDOR AND PURCHASER. Innocent purchaser. Evidence.

where in a suit to reform deeds to adjoining lots on the ground of mutual mistake, complainant showed possession of his lot up to the driveway at the time defendant purchased adjoining lot, this was sufficient to charge defendant with notice that complainant was claiming to such driveway, so that defendant could not set up that he was an innocent purchaser.

2. REFORMATION OF INSTRUMENTS. Grounds. Mistake. Description.

Notwithstading the parties intentionally used in their deeds the very terms of description written in the deeds and there was no ambiguity on the face of the conveyance, they are not bound by the documents as written, but the deeds will be reformed where the description was not in accordance with what they understood to be the boundaries of the lot.

3 SAME.

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

4. REFORMATION OF INSTRUMENTS. Mistake as to legal sufficiency of description.

Reformation of deeds will not be denied because the parties made a mistake as to the legal sufficiency of the description.

5. REFORMATION OF INSTRUMENTS. Power of equity.

There are few limitations on the jurisdiction of a court of equity to correct mutual mistakes of fact.

6. REFORMATION OF INSTRUMENTS. Laches.

Relief will not be denied on the ground of negligence, where a bill to reform deeds was promptly filed upon discovery of mutual mistake of fact where no one was injured by lapse of time.

7 EQUITY. Decree. Conformity of pleadings and evidence.

That the court relied upon a survey made during trial for an accurate description in framing its' final decree, did not make such decree subject to the objection that it was not in accordance with the bill and evidence.

HON. O. B. TAYLOR, Chancellor.

APPEAL from the chancery court of Hinds county, HON. O. B. TAYLOR, Chancellor.

Suit by J. C. McGee against W. L. Brimm and others. From a decree for complainants, defendants appeal.

The facts are fully stated in the opinion of the court.

Affirmed.

Thos. S. Bratton, for appellant.

Alexander & Alexander, for appellee.

OPINION

STEPHENS, J.

There is involved in this suit the right of appellee as complainant in the court below to a reformation of certain deeds of conveyance on the ground of mutual mistake. The prominent facts which show the situation which confronted the court are as follows: In 1911 appellee and James A. Alexander purchased from one Sykes and wife two lots in the city of Jackson, described as lots ten and twelve, block seven, Glenwood Place survey. At the time of this purchase Sykes had erected on lot ten, the western lot, a residence, garage, driveway, and other improvements. The deed was taken in the name of Alexander, but thereafter Alexander conveyed an undivided, one-half interest to his associate, the appellee herein. The entire property was thereafter for a year owned jointly by appellee and Alexander. East of the driveway the property was vacant, and this vacant lot had approximately a sixty-foot frontage. In 1912 Alexander purchased from his cotenant, McGee, the latter's one-half interest in the sixty-foot vacant lot east of the driveway, but by a mistake, now acknowledged by both parties to the transaction, the property to be conveyed was described as lot twelve, block seven, Glenwood survey. Both Alexander and McGee testified that they thought lot ten embraced the home and improvements erected by Sykes, and that the driveway was the western boundary line of lot twelve. There was a concreted sidewalk and a retaining wall along the front yard of the Sykes premises, and afterwards the sixty-foot vacant lot east of the driveway was terraced, and the occupation lines were visible to any one making an inspection of the property. Appellee, after purchasing the Sykes property from his cotenant, took possession and occupied the premises as his home. According to the map or plat of the Glenwood survey lots ten and twelve each had a frontage of eighty feet, but Mr. Sykes in making his improvements and in placing the driveway paid little attention to, or ignored, the dividing line between the two lots, and in laying off his front yard, driveway, and other improvements occupied the larger portion of the frontage, thus leaving only sixty feet to the east of the driveway. J. A. Alexander afterwards conveyed a one-half interest in the sixty-foot lot to his brother, John M. Alexander, and in the deed employed the same description, to wit, lot twelve. James A. and John M. Alexander thereafter erected a bungalow residence upon their portion of the lot, filled in, terraced, and sodded the lot, laid sidewalks in front, and rented the property to a tenant. J. A. Alexander conveyed his undivided one-half interest in the Sykes home to his associate, the appellee herein, and in making the conveyance described the property as lot 10. Through the medium of Mr. Hicks, a real estate agent, an agreement was reached between the Alexanders and Mr. Brimm, the appellant, whereby the Alexanders were to convey to Brimm the bungalow home in exchange for a ninety-acre farm near the city of Jackson. Before this trade was consummated Mr. Hicks showed the property to appellant, who inspected the house and lot, and, according to Hicks' testimony, looked over the property from front to back. There is some conflict in the testimony as to the extent of this inspection, but appellant admits looking at the property, and admits he was under the impression that the driveway was the western line of the premises he was purchasing. On this point his statement is as follows:

"I assumed the driveway was the west line;" and, at another point, "I assumed that the driveway was on the line, and on that assumption I naturally would not expect property west of the driveway, because I thought that was the line at the time."

At the time appellant purchased the bungalow property, appellee was in possession of the Sykes home and all premises west of the driveway, claiming the same under his deed of conveyance from his cotenant, James A. Alexander, Appellant took possession of the bungalow property east of the driveway, and no question was raised and no disclosure made of the alleged mutual mistake until 1917, when Mr. Hogue, a neighbor and interested in adjacent property, advised appellant that lot twelve as described in his deed, on a proper survey, would embrace a large portion of appellee's improvements. Thereupon appellant had a survey made, locating the boundary lines of lots ten and twelve, and this survey disclosed the fact that the dividing line between lots ten and twelve crossed the driveway, and that lot...

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    • United States
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    • March 21, 1927
    ...to execute this bond for this contractor, for the protection of this contract here involved. Simmons v. North, 3 S. & M. 67; Brimm v. McGee, 119 Miss. 52, 80 So. 379, and authorities there cited. We do not think there is merit whatever in this contention. Second. The fourth and tenth ground......
  • United States Fidelity & Guaranty Co. v. Parsons
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    • March 21, 1927
    ...to execute this bond for this contractor, for the protection of this contract here involved. Simmons v. North, 3 S. & M. 67; Brimm v. McGee, 119 Miss. 52, 80 So. 379, and authorities there cited. We do not think there is merit whatever in this contention. Second. The fourth and tenth ground......
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