Cherry v. Brizzolara

• Decision Date: 15 February 1909
• Citation: 116 S.W. 668
• Parties: CHERRY v. BRIZZOLARA.
• Court: Arkansas Supreme Court

116 S.W. 668

CHERRY v. BRIZZOLARA.

Supreme Court of Arkansas.

February 15, 1909.

Appeal from Pulaski Chancery Court; Jno. E. Martineau, Chancellor.

Action by L. W. Cherry against A. Brizzolara. Judgment for defendant, and plaintiff appeals. Reversed in part.

Moore, Smith & Moore, for appellant. W. L. & D. D. Terry, for appellee.

FRAUENTHAL, J.

On June 1, 1900, the appellant, L. W. Cherry, for the consideration of $13,250, conveyed by warranty deed to the appellee, A. Brizzolara, a lot in the city of Little Rock, Ark., which is described in said deed by metes and bounds as follows: "The south half (½) of lot four (4), block five (5), of the city of Little Rock, Ark., being 25 feet front on Main street"; and in July, 1905, he instituted this suit against the appellee, A. Brizzolara, in the Pulaski chancery court, seeking to reform said deed by correcting the description of the land in said deed. He alleged that by mutual mistake on the part of both parties the land was described in the deed as above set forth, when according to the intention of both parties it should in effect have been described as "the south 24 feet and 3 inches of lot 4, block 5, city of Little Rock." He alleged that on June 1, 1900, he was the owner of lot 4 in block 5, city of Little Rock, together with the buildings situated thereon; that there were two store buildings situated on said lot 4, and that there was and is a division wall between the said storehouses, and that he only intended to sell, and that defendant only intended to purchase, the storehouse and land situated on the south part of said lot 4, and only to the middle of the division wall between the two stores.

The defendant in his answer denied that any misdescription was made in said deed, denied that the alleged misdescription was the result of mutual mistake, and alleged that the description of the property as made in the deed correctly describes the property purchased and intended to be purchased by defendant. Subsequently the defendant filed an amended answer and cross-complaint, in which he alleged that the above-mentioned division wall is situated entirely on the south half of lot 4, which was conveyed and sold to defendant, and asked that plaintiff be enjoined from asserting any estate or claim in said wall, and from any use of said wall or any part thereof.

Thereafter the plaintiff filed an amendment to the original complaint and an answer to the cross-complaint, in which he alleged that the above wall between the storehouse bought and owned by defendant and the storehouse immediately north of and adjacent to it, which was retained by and is now owned by plaintiff, was and is a party wall; and avers that both plaintiff and defendant are entitled to use the wall; and asks, in event plaintiff is not entitled to the relief of reformation of the description in said deed, that he have a decree which will protect him in his right to the use of said wall, and that defendant be enjoined from molesting him in the enjoyment of such right.

The defendant denied all these allegations of the cross-complaint, and denied the right to plaintiff to any easement in the property conveyed to him by said deed.

1. It is contended by the plaintiff that by the mutual mistake of both parties the property sold by him to defendant was misdescribed in the deed, and on this account the deed should be reformed so as to correct the description. It appears from the testimony that the plaintiff owned lots 3 and 4 in block 5, in the city of Little Rock, containing 100 feet fronting on Main street and running back 140 feet in depth. Upon these 100 feet there were improvements, consisting, amongst other things, of four storehouses. Each of the above lots 3 and 4 contained 50 feet, so that the south half of lot 4 contained 25 feet. Next to and adjoining the south half of lot 4 the defendant owned a strip of ground 20 feet front on Main street with a building thereon. The plaintiff testified that when he sold and conveyed to defendant the south half of lot 4 he actually intended to sell him only the storehouse situated thereon and the extent of ground which the storehouse covered; that the storehouse covered 24 feet and 3 inches only of the south half of lot 4, and that was really the property which he intended to sell and convey; that, inasmuch as the 100 feet of property owned by him had four storehouses situated thereon, he assumed that each storehouse covered 25 feet, and on this account described the property sold to defendant as set out in the deed; and that by this mistake the property was misdescribed in the deed. The defendant, on the contrary, testified that he desired to purchase from the plaintiff the entire south half of lot 4, and intended to purchase 25 feet of ground, and not simply the store; that, inasmuch as he owned a narrow strip of ground immediately joining the south half of lot 4, he desired to expand the width of the property so as to make it more marketable; and to be better advised as to the exact extent and location of this south half of lot 4 he measured it, and found that it contained 25 feet, and that it took in the store building thereon and the north wall thereof. Now, being satisfied himself of this, he bought the property from defendant, intending to purchase the entire 25 feet, being the south half of lot 4. He testified that it was upon the faith of obtaining 25 feet and the entire south half of lot 4 with all improvements thereon that he paid the amount of the price agreed on; that there was no mistake made by him in the description of the property as set out in the deed, but that, on the contrary, it correctly describes the property.

It would serve no useful purpose to give in detail the various circumstances introduced in evidence on both sides to sustain the respective positions of the parties, nor the testimony of the other witnesses who were introduced to corroborate each in his respective contention. The chancellor found that the defendant by his purchase and deed understood and intended to purchase the whole of said south half of lot 4, being 25 feet front on Main street and the whole of the north wall thereon, and we cannot say that the proof is clear, unequivocal, and decisive that a mutual mistake was made by both plaintiff and defendant in the description of the property. This court has held that, to entitle a party to reform a deed upon the ground of mistake, it must be clearly shown that the mistake was common to both parties, and that the deed as executed does not express the contract as understood by either of them. Varner v. Turner, 83 Ark. 131, 102 S. W. 1111.

Although a court of equity may reform a written instrument on account of mutual mistake if it does not reflect the intention of both parties, yet the proof of such mutual mistake must be clear, unequivocal, and decisive. McGuigan v. Gaines, 71 Ark. 614, 77 S. W. 52; Webb v. Nease, 66 Ark. 155, 49 S. W. 1081; Denny v. Barber, 72 Ark. 546, 81 S. W. 1055; Gourke v. Rodgers, 75 Ark. 72, 86 S. W. 837; Marquette Timber Co. v. Abeles, 81 Ark. 421, 99 S. W. 685; Mitchell & Co. v. Kempner, 84 Ark. 349, 105 S. W. 880. And such mistake must appear beyond reasonable controversy. Ark. Fire Ins. Co. v. Witham, 82 Ark. 226, 101 S. W. 721.

2. It is next contended that the defendant perpetrated a fraud upon the plaintiff in obtaining the description in the deed. It is contended that plaintiff did not intend to sell the property as described in the deed as 25 feet front on Main street, and made a mistake in so describing it; and that defendant knew of his mistake, and so took an unfair advantage of plaintiff and imposed upon him. The testimony shows that when the trade was agreed upon the defendant paid $25 upon the purchase money, and the plaintiff executed a receipt as follows: "Received of A. Brizzolara $25.00 as part payment of $13,250, being the purchase money for the south half of lot 4, block 5, the same being 25 feet front on Main street. [Signed] L. W. Cherry." This receipt was entirely in the handwriting of the plaintiff. After that, the plaintiff furnished an abstract of title to the property, and in that abstract the property was described as the south half of lot 4, block 5, city of Little Rock. After all these negotiations the plaintiff himself prepared and wrote the deed, and in this conveyance to defendant he described the property as follows: "The south half of lot four (4), block five (5), of the city of Little Rock, Ark., being 25 feet front on Main street."

Can it be said under this proof that the plaintiff did not intend to sell to defendant 25 feet of ground? This property is situated in a populous city, where property is quite valuable, and where it is sold by the front foot. The total price paid for such property depends largely on the number of feet frontage. Here the plaintiff prepared and himself wrote two instruments, in each of which he described the property as containing 25 feet frontage. Under these circumstances, can it be found that the plaintiff, who testified that he has had large experience in real estate transactions, made an error in the number of feet sold, when he must have known that the total price would depend largely upon the exact number of feet so sold? Is it not rather more probable that the plaintiff intended to sell and did sell 25 feet frontage on Main street, and, if he made any mistake, it was only a mistake by him as to what buildings and improvements were situated on this 25 feet frontage? But however that may be, the defendant testified that he did not know that plaintiff was making or made any mistake in the description. He testified that he understood and intended to purchase 25 feet frontage and paid the price on that basis. If the description should be corrected and thereby the number of feet frontage reduced, it should reduce the price which the defendant would have been willing to pay for the property.

Now, plaintiff does not ask...