Cockerham v. Aime

• Decision Date: 23 March 1959
• Docket Number: No. 4749,4749
• Citation: 110 So.2d 238
• Court: Court of Appeal of Louisiana — District of US
• Parties: Waldo S. COCKERHAM v. George AIME.

Page 238

110 So.2d 238

Waldo S. COCKERHAM v. George AIME.

No. 4749.

Court of Appeal of Louisiana, First Circuit.

March 23, 1959.

Watson, Blanche, Wilson, Posner & Thibaut, Baton Rouge, for appellant.

J. Douglas Nesom, Denham Springs, for appellee.

Before ELLIS, LOTTINGER, TATE, JONES and LANDRY, JJ.

LANDRY, Judge ad hoc.

Appellant, George Aime perfected this appeal from an adverse judgment of the Twenty-first Judicial District Court, Livingston Parish, Louisiana, decreeing reformation of an act of exchange of real property entered into between appellant and appellee Cockerham, wherein Cockerham transferred to Aime a residential site in 'Cockerham Acres', Livingston Parish, Louisiana, in exchange for a 6.60 acre tract of rural property owned by Aime and also situated in Livingston Parish.

By notarial act of exchange dated January 12, 1956, plaintiff Cockerham (whose business is admittedly that of buying and selling real estate) owner of a subdivision known as Cockerham Acres, conveyed to defendant Aime the following described property:

'A certain plot or parcel of land situated in Section 30 Township 6 South Range 3 East, in the Parish to Livingston, State of Louisiana, more fully described as follows:

'Begin at the northeast corner of the intersection of Magnolia Drive and Maple Drive in Cockerham Acres Subdivision, and measure in an Easterly direction along Maple Drive, a distance of Three Hundred (300) feet; thence measure in a Northerly direction a distance of One Hundred Fifty (150) feet; thence measure in a Westerly direction, a distance of Three Hundred (300) feet; thence measure in a Southerly direction along Magnolia Drive, a distance of One Hundred Fifty (150) feet to point of beginning.

'Said property to be identified as the 'George Aime Property' on a plat to be made at a later date.

'Above property being subject to the restrictions in deed recorded in COB 78 page 216.'

In consideration of the transfer from Cockerham to him of the above described property, Aime (in the same act), conveyed to Cockerham a tract of land containing 6.60 acres, a description of which is not material to the issues herein involved. The act of exchange declares the properties traded to be of equal value and recites the value of each to be the sum of $3,750.

On June 11, 1956, at the request of Aime, the exchange agreement of January 12, 1956, was, by notarial act, corrected pursuant to a map of survey made by John I. McCain, Civil Engineer and Surveyor, dated January 23, 1956, so that the description of the property previously conveyed to Aime was amended and revised to read as follows:

'A certain plot or parcel of ground, together with all the buildings and improvements thereon, situated in the Parish of Livingston, State of Louisiana, in Section Thirty (30) Township Six South (T--6--S Range Three East R--3--E), in that subdivision known as Cockerham Acres Subdivision at the northeast corner of the intersection of Magnolia Drive and Maple Drive, and being more particularly described according to a map made by John I. McCain, C.E. and Surveyor dated January 23, 1956, which is annexed hereto and made a part hereof as follows:

'Begin at the northeast corner of the intersection of Magnolia Drive and Maple Drive and run in an easterly direction along the north side of Maple Drive a distance of three hundred (300 ) feet and corner; thence run North 17 deg. 31 East a distance of ninety-eight (98 ) feet and corner; thence run North 6 deg. 2 East a distance of fifty-two (52 ) feet and corner; thence run in a westerly direction paralled to the north line of Maple Drive a distance of three hundred (300 ) feet to the east line of Magnolia Drive and Corner; thence run South 6 deg. 2 West a distance of fifty-two (52 ) feet and corner thence run S. 17 deg. 31 west a distance of ninety-eight (98 ) feet to the point of beginning.

'Appearers further declared that they do fully ratify and confirm said Act of Exchange in all other respects.'

The basis of Cockerham's plea for reformation is that he intended to exchange two lots each measuring 75 feet front on the north side of a street known as Maple Drive by a depth of 150 feet parallel to the line of Magnolia Drive (said property being situated at the northeast corner of the intersection of Maple Drive and Magnolia Drive). Cockerham maintains that through mutual inadvertent error the property conveyed to Aime was incorrectly described as having a front of three hundred feet on the north side of Maple Drive. Plaintiff contends the act of correction dated June 11, 1956, was executed at Aime's request solely for the purpose of revising the bearings of the east and west side lines of the property when a survey conducted in connection with Aime's application for a loan on the property disclosed the eastern boundary of Magnolia Drive (which formed the western boundary of the property) did not run on a tangent and, therefore, it was necessary to correct the original act of exchange as the parties intended the eastern and western lines of the property to run parallel to the western boundary of Magnolia Drive.

In support of his plea for reformation, plaintiff relies upon the premise that where clear and convincing proof of an antecedent agreement and mutual error in reducing an agreement to writing is shown, reformation will be decreed on equitable principles even though he error is not apparent on the face of the document.

Defendant's answer admits execution of the original act of exchange and the act of correction but otherwise denies the allegations of plaintiff's petition.

In his brief, defendant Aime's contentions are set forth as follows:

1.

In the sale of real property, a strong presumption obtains that the deed, as executed properly describes and conveys the land intended to be conveyed and evidence of error must be clear and convincing.

2.

An instrument executed according to the intention and understanding of the parties with full knowledge of the facts will not be reformed.

3.

Courts refuse to reform instruments when the alleged error is due to the negligence of the complaining party, particularly in the absence of a showing that complainant was misled by the actions of the other party.

4.

When mistake alone is relied upon as ground for reformation of an instrument, the mistake must be a mutual mistake.

5.

Reformation of a contract for mutual error will not be decreed in the absence of clear and convincing proof of an antecedent agreement with respect to which error is shown.

6.

Plaintiff's right to reformation is barred by ratification in the form of the corrective act executed June 11, 1956.

More specifically, Aime contends that since plaintiff himself admittedly prepared the original act of exchange and voluntarily signed the act of correction some five months thereafter, plaintiff may not now complain of any inaccuracy in the documents. Defendant also contends there is no clear proof of error and in the absence of such proof, an act of exchange of real property is presumed to set forth the intention of the parties regarding the description contained therein and may not be reformed. It is likewise the position of defendant that there was no antecedent agreement and that preparation of the act of exchange by Cockerham constituted an offer which was accepted by Aime and, therefore, became a binding contract.

The trial judge did not favor us with written reasons for his judgment. However, for oral reasons assigned and dictated into the record, our brother below concluded plaintiff Cockerham proved mutual error relative to an antecedent contract and rendered judgment as prayed for by plaintiff. We believe this finding of fact is supported by the evidence.

Plaintiff Waldo S. Cockerham testified in substance that his business is developing real estate and prior to the date of the act of exchange involved herein, Mr. and Mrs. Aime contacted him relative to the purchase of a site in Cockerham Acres for the declared purpose of constructing a home thereon. Mr. and Mrs. Aime accompanied plaintiff to the subdivision where they were shown available sites; defendant and his wife ultimately expressed their preference for the property at the corner of Maple and Magnolia Drives. Cockerham informed Mr. and Mrs. Aime the price of lots in his subdivision was $2,000 for a 75 150 foot lot and that lots in Cockerham Acres were not surveyed (plaintiff testifying he obtained certain tax advantages by not having the lots surveyed until each sale was consummated). Plaintiff paced off a distance of 75 feet in order that the Aimes might see how large a 75 foot lot would appear. The Aimes then informed plaintiff they would need at least two lots whereupon plaintiff stepped off an additional 75 feet to give them an impression of the size of two lots. Mr. and Mrs. Aimes then stated they might possibly buy four lots at which point plaintiff paced an additional 150 feet so that defendant and his wife might obtain the effect of a lot having 300 feet front. A discussion ensued in which it was ultimately concluded the Aimes would purchase two lots of 75 feet front each commencing at the corner and running easterly along the northern line of Maple Drive and, in addition, Cockerham agreed to reserve two adjoining lots or an additional 150 feet for purchase by the Aimes at a future date. In the course of the conversation which followed, Cockerham informed the Aimes that if they purchased two lots, he would reduce the total price the sum of $250 and sell two 75 foot lots as a unit for the price of $3,750. Aimes informed Cockerham that he owned a 6.60 acre tract of land which he would have to sell in order to finance the purchase of the lots in Cockerham Acres. During the negotiations between the parties, the possibility of an exchange of Cockerham's lots for Aime's rural acreage was considered and Aime informed Cockerham he had recently purchased the 6 acre tract for the sum of $3,000 and had...