Cochran v. Burns
| Decision Date | 11 July 1919 |
| Docket Number | No. 46/499.,46/499. |
| Citation | 107 A. 476 |
| Parties | COCHRAN et al. v. BURNS. |
| Court | New Jersey Court of Chancery |
Bill by Underwood Cochran and another against John G. Burns. On motion to strike out bill. Motion denied.
Bourgeois & Coulomb, of Atlantic City, for the motion.
Schimpf, Hanstein & Butler, of Atlantic City, opposed.
LEAMING, V. C. Complainants' amended bill is for reformation of a deed of conveyance of real estate made by complainants to defendant. Defendant now moves to strike out the amended bill on the ground "that there are no facts set forth as alleged in said bill which would entitle the complainants to the relief prayed for therein."
The general rule touching reformation of written instruments, as early stated in our federal Supreme Court, cannot be questioned:
"Where an instrument is drawn and executed, which professes, or is intended, to carry into execution an agreement, whether in writing or by parol, previously entered into, but which, by mistake of the draftsman, either as to fact or law, does not fulfill, or which violates the manifest intention of the parties to the agreement, equity will correct the mistake, so as to produce a conformity of the instrument to the agreement." Hunt v. Rhodes, 1 Pet. 1, 13 (7 L. Ed. 27).
The rule, as there stated, is given express approval in Ex'rs Wintermute v. Ex'rs Snyder, 3 N. J. Eq. 489, 500, and is in substance approved by our Court of Errors and Appeals in Preichnecht v. Meyer, 39 N. J. Eq. 551, 560. If complainants' bill clearly sets forth a situation of that nature it must be sustained.
The bill states as a fact that the premises conveyed to defendant were subject to lease, and were occupied by tenants, all of which defendant knew, and that it was the intention of complainants and defendant that the conveyance should be made subject to the leasehold and the interests of tenants, and to that end they placed in the written agreement of sale a provision that "all adjustments such as water, sewer, interest, rents, taxes, etc., on both properties to be adjusted as of day of settlement," that a conveyance was subsequently made by complainants to defendant in pursuance of the agreement, but the deed of conveyance so made was a general warranty deed, and did not mention leasehold interests of tenants; that complainants' deed was made and executed without excepting the leasehold interest of tenants through mutual inadvertence and mistake. The prayer is that the deed be reformed fo conform to the...
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