Brown v. King, 38449

• Court: Mississippi Supreme Court
• Writing for the Court: ALEXANDER; McGEHEE
• Citation: Brown v. King, 214 Miss. 437, 58 So.2d 922 (Miss. 1952)
• Decision Date: 26 May 1952
• Docket Number: No. 38449,38449
• Parties: BROWN et ux. v. KING.

Page 922

58 So.2d 922

214 Miss. 437

BROWN et ux. v. KING.

No. 38449.

Supreme Court of Mississippi.

May 26, 1952.

Dabney & Dabney, Vicksburg, for appellants.

Dent & Ward, Vicksburg, for appellee.

ALEXANDER, Justice.

This appeal is from a degree dismissing a bill filed by appellants to reform a deed executed to appellants by appellee.

The deed conveyed certain lands in Warren County and contains a reservation, for a period of ten years from its date, of all merchantable timber thereon or that which during such time should become merchantable. The grantor also reserved a one-fourth interest in all minerals therein. The dispute arises out of the contention by appellants that it was mutually understood that the timber reservation was to be limited to three years.

Although there was some dispute, the chancellor was justified in finding from the whole testimony that the deed was prepared by appellee's attorney with the ten-year reservation therein and read to appellants by him at the time the appellants executed a purchase-money deed of trust thereon. Also, that after the deed had been recorded, it was delivered to appellants, who read it, and after noting the ten-year provision, made no protest to the attorney or grantor or offered to return it, but proceeded to locate Mr. King, who was acting, with authority, for Mrs. King and paid to the former the cash consideration. Testimony of appellants was that there were two deeds and that the one delivered did not conform to the alleged agreements in prior negotiations. However, the attorney, his secretary who drew and notarized the deed, and the grantor testified that the deed delivered was the only one drawn. It was further testified by Mr. King that there was no definite agreement as to the extent of the reservation but that some reservation would be made.

In view of the knowledge of the appellants as to its contents, their acceptance without protest, together with their subsequent payment of the cash consideration, the prior negotiations had become merged into the accepted contract of conveyance and they are now without right to have it reformed. Koenig v. Calcote, 199 Miss. 435, 25 So.2d 763, is a stronger case than this on its facts. Moreover, the evidence to justify reformation must be sustained by proof beyond a reasonable doubt. Frierson v. Sheppard, 201 Miss. 603, 29 So.2d 726. In the instant case there was shown no mutual mistake.

While little emphasis is placed upon the alleged right to minerals and mineral...