Clark v. Roots

• Decision Date: 14 January 1888
• Citation: 6 S.W. 728,50 Ark. 179
• Parties: CLARK v. ROOTS
• Court: Arkansas Supreme Court

6 S.W. 728

50 Ark. 179

CLARK v. ROOTS

Supreme Court of Arkansas

January 14, 1888

APPEAL from Pulaski Chancery Court, D. W. CARROLL, Chancellor.

Decree affirmed. Motion denied.

Sol. F Clark, for appellant.

The sole defence to this suit is that Clark did know, or should have known, that the Godbold tract should be excepted out of the deed, because Godbold was in possession and his deed on record, and Clark was bound to take notice. This is not the law. Bispt. Eq., sec. 213.

If Adams & Roots made a mistake in selling lands they had no title to, even if Clark knew it, this is only ground to rescind the contract, not to reform it. Rawle Cov. for Title 128-9; Bispt. Eq. sec. 191 and notes.

If there was any mistake at all, it was wholly on the part of Roots and Adams, and occurred through their extreme carelessness and negligence. Courts never correct a mistake which is the result, of negligence. Bispt. Eq., sec. 191; 28 N. Y. Eq., 306; 33 Mich. 123; 12 Cl. and Fin., 248, 286; 2 De G. and J., 110; 8 Ga. 546; Kerr on Fraud and Mis., 407; 19 Ark. 522; 14 Id., 482; 12 Wisc., 112.

Parol evidence is not admissible to contradict a deed, at law or in equity. 1 McCord, 258. Nor to show that part of the premises contained in the deed were intended to be excepted from the grant. 12 Johns, 427.

No such case of mutual mistake or fraud is made out, as a court of equity will relieve by reforming the deed. It was the duty of the court to either have rescinded the trade, or given judgment for Clark on the warranty. It is only in cases of mutual mistake, or mistake on one side and fraud on the other, that equity will reform a deed. Bisph. Eq., secs. 190, 191 and notes; Rawle on Cov. for title, 522-3-4; 12 Wisc 112.

John McClure, for appellees.

1. The ground of relief in this case is, that plaintiff, in preparing the deed from defendants used words which conveyed land which they did not own or sell to him, and at the time of signing the deed they were led to believe were only intended to describe the property which they actually sold him. 60 N.Y. 301.

The circumstances under which a deed was executed are admissible 12 Cal. 148; the situation of the parties and state of the thing granted at the time. 26 Cal. 88; 15 Ill. 581; 3 Mass. 352. In such cases parol evidence, contemporaneous writings, and acts done under the contracts, may be admitted to interpret the deed. 46 N.H. 83.

Where property has been conveyed through mistake by deed, which the parties never intended should be conveyed, which the grantor was under no legal obligation to convey and which the grantee could not in good conscience retain, a court of chancery will interfere and correct that mistake, whether it arose from a misapprehension of facts, or of the legal operation of the deed.

And this whether the mistake was mutual, or arose from a mistake on one side and fraud on the other. 121 Mass. 23; 21 Conn. 139; 2 Dev. Eq. (N. C.), 37; 46 Me. 367; 9 Ind. 127; 11 Md. 492; 30 Me. 289; 16 Ga. 49; 54 Wisc., 178; 28 Id., 219; 44 N.Y. 528; 75 Id., 593; 87 N.Y. 49.

SMITH, J. COCKRILL, C. J.

OPINION

SMITH, J.

In January, 1883, Mr. Clark sold his plantation to John D. Adams, and took in part payment the Mask place, supposed to contain forty-five acres, at the price of $ 4,500. Mask had at one time owned sixty acres; but as long ago as 1875 he had sold fifteen acres of the tract to Godbold, who thenceforward was in actual possession under a recorded deed. After this last mentioned sale the forty-five acres which Mask retained were known in the neighborhood as the Mask place; and the fifteen acres which had been sold off went by the name of the Godbold land. In 1876 Mask executed a deed of trust to L. W. Coy, as trustee, for the better security of the repayment of a loan of money. In this deed the premises are described as they stood before the sale to Godbold, but the area is specified to be forty-five acres. And in 1878 Mask executed to the same trustee another deed of trust, to secure a second loan. In the last mentioned deed the description is indefinite, the metes and bounds given not enclosing any specific parcel of land; but the Mask place, containing forty-five acres, was intended. At the sale for foreclosure of these trust deeds Roots bought. He afterwards sold and conveyed to Adams and Adams to Mr. Clark. In these conveyances the imperfect description, contained in Mask's second deed of trust, is repeated. M'r. Clark, becoming aware of the faulty description, called the attention of his vendor to the discrepancy. Adams and Roots, then, in November, 1883, without any new consideration received, but solely for the purpose of correcting the inaccurate description in the former deed, united in the execution of a deed to Mr. Clark. This last deed was prepared by Mr. Clark himself, and in it the description contained in Mask's first trust deed was copied; that is to say, the calls in the deed included the fifteen acres of Godbold. The description in the deed to Mr. Clark is as follows: "Beginning at the corner of J. A. Vaughn's land, in center of public road on the south side of the Arkansas river, and on a line between the Vaughn land and the land belonging to Robert Bertrand (now belonging to Field), thence south 19 [degree] west, twenty-three and 60-100 chains, thence south thirty-two and 49100 chains, thence north 29 [degree] east forty-eight and 10-100 chains, thence north 48 1/2 [degree] west twelve chains, thence north 54 [degree] west eight chains, to point of beginning, containing forty-five acres more or less, known as the Dr. Mask place". And the deed contained covenants of seisin, of freedom from incumbrances and of general warranty.

As soon as Mr. Clark discovered that his deed purported to convey land of which Godbold was in possession, he brought his action at law against his grantors upon their covenants, assigning for breaches the paramount title of Godbold to the fifteen acres, and also the existence of sundry mortgages and judgments against Roots and Adams.

The defendants answered, denying that the said mortgages and judgments were subsisting liens upon the land. And, as no proof was offered on this branch of the case, we need not further advert to the breaches of the covenants against incumbrances.

Upon the main issue the defendants claimed that the description in the deed was erroneous, in that it included the fifteen acres; that they had never owned, nor undertaken to sell that parcel of land, nor had the plaintiff been misled into the belief that it was a part of his purchase; but, on the contrary, he had both actual and constructive notice that Godbold was the owner of that tract; that all the defendants sold and meant to convey was the forty-five acres that remained after Godbold's fifteen acres had been severed; that the description in the deed was by courses and distance and at such angles that it was impossible for the defendants, without the assistance of a surveyor, to say whether it comprehended sixty acres, or only the forty-five acres which the plaintiff bought; but they executed the deed in full confidence that the land was correctly described, whereas it, in fact, by the mutual mistake of the parties, included fifteen acres belonging to Godbold. They made their answer a cross-complaint, and prayed for a reformation of the deed, so as to conform to the intention of the parties, or, if this relief could not be had, for a perpetual injunction against the prosecution of this, or any similar action by the plaintiff.

On motion of the defendants the cause was transferred to the Pulaski chancery court.

In answer to the cross-complaint, the plaintiff denied that there was any mistake in the description. He had drawn the instrument as he was directed to do, and the draft was in the hands of Roots several weeks before its execution. He further denied that he purchased forty-five acres and no more, but alleges that he purchased all the land comprised within the metes and bounds specified in his deed, be the same more or less than forty-five acres. And he stated that the fifteen acres of Godbold constituted one-fourth in quantity and value of the property so purchased and conveyed.

The chancellor finds, specifically, that on the 4th of January 1883, John D. Adams, by deed, attempted to convey the said "Mask Place," which he had purchased from Roots, to Sol F. Clark; that said last mentioned deed was prepared by the plaintiff, Sol F. Clark, and that there was a mistake in describing the lands intended to be conveyed, caused by said Clark copying the words used in the deed from Roots to Adams; that neither the said Adams or the said Clark, at the time of the delivery or acceptance of said deed, knew of said mistake; * * * * * that Adams executed the deed of January 4th, 1883, to said Clark, supposing he was conveying the "M'ask Place," as it was then known and understood to contain forty-five acres, and that said Clark accepted the same, believing he was receiving a conveyance of the "Mask...