Cox v. Ellsworth

• Decision Date: 06 January 1886
• Parties: JOSHUA COX, APPELLEE, v. FRANCIS M. ELLSWORTH ET AL., APPELLANTS
• Court: Nebraska Supreme Court

26 N.W. 460

18 Neb. 664

JOSHUA COX, APPELLEE, v. FRANCIS M. ELLSWORTH ET AL., APPELLANTS

Supreme Court of Nebraska

January 6, 1886

APPEAL from Hamilton county. Tried below before NORVAL, J.

AFFIRMED.

Austin J. Rittenhouse and William P. Hellings, for appellants cited: Burr v. Sim, 4 Wharton, 150. Eagle's Case, 3 Abbott, 218. Proctor v. McCall, 23 Amer. Decisions, 135. Holmes v. Johnson, 42 Pa. State 164. Miller v. Beates, 8 Amer. Decisions, 658. Abbott's Trial Evidence, 74.

Alfred W. Agee, for appellee, cited: Jamison v. Smith, 17 Rep., 300. John Hancock v. Moore, 34 Mich. 41. Best Evidence (Morgan's Ed.), § 409. Tisdale v Insurance Co., 26 Iowa 170. Ryan v. Tudor, 31 Kan. 366. Hancock v. Insurance Co., 62 Mo. 29.

OPINION

COBB, CH. J.

This is an action in equity brought in the district court of Hamilton county, by Joshua Cox, plaintiff, against Francis M. Ellsworth and wife, defendants, to reform an error or mistake in a deed of real estate executed by said defendants to one Mitchel Clement, under whom the plaintiff claims. The alleged error or mistake consisted in a misdescription of the land intended to be described in and conveyed by the deed. The defendants answering denied that there was a mistake or error in the deed, and denied the death of Mitchel Clement, their grantee. The deed under which the plaintiff claims his right in the premises was executed by Sarah J. Clement, widow or wife, and Minnie L. Clement, only child of said Mitchel Clement. This land was purchased and deed received by said plaintiff, and executed by said Sarah J. Clement and Minnie L. Clement on the theory that said Mitchel Clement was deceased prior to the date thereof--November 21, 1881.

The cause was tried to the court, which found all of the issues for the plaintiff, and adjudged, decreed, and ordered the said deed reformed and corrected as prayed by the plaintiff in his petition, etc.

The cause is brought to this court by the defendants by appeal. The case presents two questions:

1. Was there a mistake in the description of the land sought and intended to be conveyed by Francis M. Ellsworth and wife to Mitchel Clement under date June 9, 1875?

2. Was Mitchel Clement deceased prior to November 21, 1881?

The deed as recorded describes the land conveyed as "the south half of the north-west quarter of section 34, in township 10, range 5 W. It was amply proved on the trial that this land was entered under the homestead law prior to any of the transactions between Ellsworth and Clement by one Thomas C. Klumb, who continued to own and occupy it until long after the date of said transactions. The defendant F. M. Ellsworth presented his own deposition, taken in Washington Territory, as evidence on the part of the defendants. In his deposition he does not claim that he ever owned the land actually described in the deed to Clement; but he does swear that he did not intend by the said deed to convey to Clement the south half of the north-west quarter of section 34, in township 11, range 5 W., the only tract of land that he is proved to have owned in Hamilton county at that time. On the other hand, Mr. Agee, a witness on the part of the plaintiff, testified that he was intimately acquainted with the defendant Francis M. Ellsworth in the fall of the year 1874, and for three or four years thereafter; that in the fall of 1875 he had a correspondence with said defendant (defendant residing at Seward, and witness at Aurora, Hamilton county) in reference to this land; that one Hyatt came to witness, who was then a law partner of said Ellsworth, and inquired if Ellsworth would sell the said tract of land, the south half of the north-west quarter of section 34, in township 11, R. 5 W.; that at the request of said Hyatt witness wrote to Ellsworth in regard to said tract of land, whether it was for sale, and the price and terms; that Ellsworth wrote a letter to witness in reply. Said letter having been destroyed at the time of the closing up of the partnership business between witness and defendant, witness was permitted to state the contents of the letter, and testified as follows: "In reply to my letter he wrote me that he did not own the land at all, that he had sold it. I saw Mr. Ellsworth, and we had frequent conversations about it. After he wrote that, I saw Mr. Hyatt, and Mr. Hyatt told me that the record showed it was his, and I went and examined the record, and found that so far as the record showed that the title was still in Ellsworth, and at the first time I saw Ellsworth, I think, at any rate after that time, I spoke to him about it, and told him that the record showed he still owned the land. 'Well,' he said, 'it is a mistake in the record.' He said he had sold the land, and that there was some mistake about it. I think that we went to the court-house and examined the records in reference to the matter, and took the index and looked through, and we found that the title was still in Ellsworth, and that he had never made any conveyance of it after he received the conveyance from Lewis, and on searching the index we found where a deed from Ellsworth to Clement (I can not say that I now remember what the name was), but I know that we traced out this deed from him to another party, and we found that it appeared of record that the deed covered the south half of the north-west quarter of sec. 34, town. 10, range 5, instead of town. 11, range 5; and Ellsworth said that undoubtedly there had been a mistake made in the deed in recording it, and that he was sure if the party looked up the original they would find it was all right, and it would describe the piece of land as in town. 11, instead of town 10. I had several conversations with Mr. Ellsworth about the matter, and I told Mr. Ellsworth what Mr. Johnson claimed about the matter, and he still insisted that the deed would be found to be all right, and that it must have been a mistake in the record. The last conversation I had with him occurred since he moved out to Washington Territory. He came back here, and that is, I believe, the first time he claimed to still own the tract of land out here in town. 11."

Upon this and other testimony I do not think that the court could have found otherwise than that "there was an error and mistake inadvertently made in the description of the premises intended to be made," etc. Some stress is laid in the deposition of defendant on the assertion made by him that if there was a mistake in the description of the land in the deed it was not his mistake, but the mistake of Mills, the agent of the grantee. I do not think it would make any difference whose mistake it originally was. By executing and acknowledging the deed he adopted its terms, and if there was a mistake in it, though made by the draftsman, whoever he might be, so that the deed did not express the true intention of the grantor, a court of equity will reform it so as to comply with such intention.

On the...