Edmiston v. Wilson

• Decision Date: 27 June 1961
• Docket Number: No. 12052,12052
• Citation: 120 S.E.2d 491,146 W.Va. 511
• Court: West Virginia Supreme Court
• Parties: Matthew EDMISTON, Jr., Executor, Etc. et al. v. Jesse WILSON et al.

Page 491

120 S.E.2d 491

146 W.Va. 511

Matthew EDMISTON, Jr., Executor, Etc. et al. v. Jesse WILSON et al.

No. 12052.

Supreme Court of Appeals of West Virginia.

Submitted April 18, 1961.

Decided June 27, 1961.

Syllabus by the Court

1. Equity has jurisdiction to reform and correct a deed executed through a mutual mistake of fact to conform to the actual agreement of the parties to the deed when such mistake results from the mistake of the scrivener in the preparation of the deed.

2. 'Generally, to warrant equity to reform a deed for mistake the mistake must be mutual; but the mistake of a scrivener in preparing a deed is regarded as the mistake of both parties, he being regarded as the agent of both.' Point 3, syllabus, Davis v. Lilly, 96 W.Va. 144 .

3. Parol evidence is admissible to establish a mutual mistake in a deed or other written instrument.

4. Parol evidence to establish and correct a mutual mistake of fact in an unambiguous written instrument is admissible not by virtue of an exception to the parol evidence rule but because that rule does not apply to or preclude the admission of such evidene for that purpose.

5. 'To justify a court of equity in decreeing reformation of a deed, the evidence produced on the part of one seeking such reformation must be strong, clear and convincing.' Point 4, syllabus, Johnston v. Terry, 128 W.Va. 94 .

6. An attorney is a competent witness to testify in behalf of his cleitn and, except as to privileged communications, to testify against him.

7. Any practice which enables an attorney, while engaged in the prosecution or the defense of litigation, to testify as a witness in the course of such litigation is disapproved.

8. When counse for a party to a cause finds that he is required to be a material witness for his client he should immediately so advise his client and retire as counsel in the case.

9. As a general rule, the conduct of trials and the order of introducing testimony, subject to well established rules of practice and procedure, rest within the sound discretion of the trial court, and that rule is applicable to the admissibility of evidence in rebuttal which could and should have been introduced by the plaintiff in chief.

10. Whether a plaintiff will be allowed to introduce further evidence after the evidence in behalf of a defendant is concluded is ordinarily within the discretion of the trial court, and the exercise of such discretion will rarely constitute ground for reversal.

Woodroe, Kizer & Steel, W. M. Woodroe, W. H. Stee, Charleston, for appellants.

Steptoe & Johnson, James M. Guilher, Clarksburg, Myron B. Hymes, Buckhannon, O. E. Wyckoff, Grafton, for appellees.

HAYMOND, President.

This suit in equity was instituted in the Circuit Court of Upshur County on October 13, 1957. The original plaintiffs, Matthew Edmiston and Maude C. Bassel, both of whom are now deceased and who will be referred to as the plaintiffs, brought this suit for the purpose of obtaining a decree to reform and rectify a deed made by the plaintiffs to the defendants, Jesse Wilson and Julia Wilson, who will sometimes be referred to as the defendants, on the ground of mutual mistake by the scrivener in drafting the provisions which reserved certain rights in the grantors to transport coal over the land conveyed which consisted of a tract of 6.42 acres of surface adjacent to and lying between the main line of the Baltimore and Ohio Railroad Company and U.S. Highway No. 33 in Upshur County. The deed was dated January 12, 1951, was executed and acknowledged by the plaintiffs on that date, was delivered to the defendants on January 13, 1951, and was recorded in Upshur County on January 26, 1951.

By deed dated November 3, 1952, the plaintiffs granted and conveyed to Reppert Coal Mining Company for the consideration of $11,100.00 a tract of 14.885 acres and an easement or right of way on and over the tract of 6.42 acres to make certain improvements and construct railroad tracks necessary for the purpose of transporting coal to be mined and produced by the owner of such easement or right of way, which easement or right of way was later assigned to the defendant, Reppert Fairmont Coal Company, sometimes referred to as the defendant, and it has mined, produced and transported its coal upon and over the tract of 6.42 acres since April 1953. The tracts of 6.42 acres and 14.885 acres were a part of a large tract, sometimes referred to as a farm, which originally contained approximately 705 acres, on which the plaintiff Matthew Edmiston resided, including the coal within and underlying it, the greater portion of which was located northwest of U.S. Highway No. 33.

The case was heard upon the bill of complaint and its exhibits, the answer of the defendants, Jesse Wilson and Julia Wilson, and its exhibits, the answer of the defendant Reppert Fairmont Coal Company, the motion of the defendants Jesse Wilson and Julia Wilson to dismiss the defendant Reppert Fairmont Coal Company from the case, the demurrer of that defendant to such motion, and the depositions of witnesses in behalf of the respective parties and exhibits filed and introduced with the depositions.

The suit was revived in the name of Matthew Edmiston, Jr., as Executor of Matthew Edmiston and as Executor of Maude C. Bassel, and by final decree entered October 24, 1959, the circuit court held that the scrivener in preparing the deed made a mistake in expressing the true intention of the parties as to the reservations in favor of the grantors concerning the easement claimed by them and the sidetracks proposed to be constructed by the grantees; that the mistake was mutual; that it was the intention of the parties to the deed, at and prior to its execution, that it should reserve and except unlimited and unrestricted rights in the grantors in and to the easement and the railroad siding and sidetracks proposed to be constructed and actually later constructed by the grantees, the defendants Jesse Wilson and Julia Wilson; and that the deed should be, and it was, reformed and rectified to conform to and express the true intention of the parties and to reserve to the grantors, the plaintiffs, their heirs and assigns, the unlimited right to use the easement, railroad siding and sidetracks constructed by the grantees, the defendants Jesse Wilson and Julia Wilson, without limitation as to the ownership of coal and other materials to be transported on and over the tract of 6.42 acres of land; and that the plaintiffs should recover their costs from the defendants Jesse Wilson and Julia Wilson.

To the final decree this Court granted this appeal and supersedeas upon the application of the defendants Jesse Wilson and Julia Wilson on July 6, 1960.

During the month of May 1950 the defendant Jesse Wilson went to Edmiston's home for the purpose of purchasing from him the tract of 6.42 acres abutting on the railroad which Wilson desired to acquire for the construction of a tipple and sidetrack in connection with the mining and transportation of coal to be produced by Wilson who at the time he testified in 1958 had been a coal operator for about fourteen years. The line of the railroad company terminated near the Edmiston tract and the only practical route for the transportation to the railroad of the coal to be produced from that tract and other nearby tracts of land northwest of the Edmiston tract in the area of Mudlick Run, which according to Edmiston consisted of several thousand acres, was over a portion of the Edmiston tract. It appears that for this reason Edmiston considered it highly important that in any conveyance of any portion of his tract of land the right to transport his coal and the coal from other lands should be reserved to the grantors.

During the initial negotiations Edmiston insisted that in any conveyance the grantors would reserve the unrestricted right to use any sidetrack which Wilson would construct on the land conveyed and, according to Edmiston, he told Wilson that he would not sell the land if there should be any restriction upon the transportation rights of the grantors, that there should be reserved the same unrestricted rights as had been reserved in prior conveyances made by Edmiston and his wife and Bassel to Knabenshue dated September 18, 1926, to Henckle and Romesberg dated October 21, 1944, and to Henckle dated June 23, 1947, for small tracts of land adjoining the railroad on which sidetracks had been constructed, and that in any deed to him for the land which Wilson desired to purchase the same unrestricted rights should be reserved to the grantors.

Sometime after the initial meeting between Edmiston and Wilson they went to the law office of U. G. Young, Jr., at Buchannon, who represented Edmiston as his attorney, and the terms of the proposed conveyance were discussed. At that time Young made some preliminary notes but he did not then prepare a draft of the proposed deed. Wilson did not want to conclude the purchase until he received approval from the railroad company of his plans for the construction of a sidetrack but at that conference he delivered a check for $5,500.00, the agreed purchase price, to Young to be retained by him until the purchase was finally completed and at that time the check was to be delivered to the plaintiffs. Edmiston wanted to close the transaction during the year 1950 but the railroad company did not forward to Young, its local attorney, its written permission, dated January 3, 1951, for Wilson to construct the sidetrack, until several days after that date, for delivery to Wilson.

On January 4, 1951, Wilson went to Young's office and at that time Young prpared the first draft of the proposed deed which contained a reservation which only permitted the grantors to transport coal and other materials from their other lands over the 6.42 acres. When Wilson left the office he took the draft with him, apparently for the purpose of further considering its provisions....