Elliott v. Daves
| Decision Date | 23 November 1936 |
| Docket Number | 32412 |
| Citation | 176 Miss. 846,170 So. 680 |
| Court | Mississippi Supreme Court |
| Parties | ELLIOTT et al. v. DAVES |
1. REFORMATION OF INSTRUMENTS.
Rule that party taking voluntary deed based on love and affection having no valuable consideration, cannot have deed reformed but must take it as it exists, may have exceptions where family settlement is involved.
2. REFORMATION OF INSTRUMENTS.
Where valid monetary consideration for deed has in fact been paid it is competent to show that fact by credible witnesses to extent required by law to reform an instrument, and true consideration for conveyance may be shown by parol.
3. REFORMATION OF INSTRUMENTS.
Bill to reform deed which alleged that deed, by which deceased conveyed to niece, who had lived with him as daughter property for recited consideration of love and affection, had for its real consideration payment of taxes, debts of deceased, and burial insurance for deceased held not demurrable.
HON. T. P. GUYTON, Chancellor.
APPEAL from the chancery court of Carroll county, HON. T. P. GUYTON, Chancellor.
Bill by Mrs. Willie Shute Daves against Sam Elliott, administrator of J. M. Shute, deceased, and others to reform a deed made by J. M. Shute. From a judgment overruling defendants' demurrer to plaintiff's amended bill, the defendants appeal. Affirmed and cause remanded.
Affirmed and remanded.
S. E. Turner, of Carrollton, for appellants.
It is the contention of appellants that the deed made by J. M. Shute to Mrs. Willie Shute Daves, sought to be cancelled and reformed was a voluntary deed, made for love and affection and without consideration, does not come within the exceptions where voluntary deeds can be reformed, this suit in no way affecting the settlement of a family estate, the said Mrs. Willie Shute Daves, the appellee herein, not being an heir at law of the said J. M. Shute, deceased.
A grantee who is a mere volunteer in a deed of conveyance cannot maintain a bill to reform deed, unless it represents a family settlement, or comes within some exception to the general rule. A volunteer cannot ordinarily have a conveyance reformed, and the pleadings must bring a case within the exceptions, before such will be entertained.
Herod v. Robinson, 149 Miss. 354, 115 So. 40; Spencer v. Spencer, 75 So. 770, 115 Miss. 71; Miles v. Miles, 37 So. 112, 84 So. 624.
It is also the contention of appellants that to reform the deed in this case the mistake in description, if a mistake, must have been a mutual mistake, and the pleadings, that is, the bill of complaint, fails to show that it was a mutual mistake, if such.
Rogers v. Clayton, 115 So. 100; Progressive Bank of Summit v. MeGehee, 107 So. 876, 142 Miss. 655.
One seeking reformation of a written instrument against the consent of another person in interest, on the ground of mistake, must show clearly and satisfactorily that the instrument as written fails to express the real agreement made by the parties.
Wilczski v. L. & N. R. R. Co., 6 So. 709, 66 Miss. 595; Wise v. Brooks, 13 So. 836, 69 Miss. 891; Hall v. Lafayette County, 13 So. 38, 69 Miss. 529; Jones v. Jones, 41 So. 373, 88 Miss. 784.
Reformation of written instruments for mistake of fact can only be decreed upon clear and satisfactory proof of such mistake.
Dunbar v. Newman, 46 Miss. 231.
T. O. Yewell, of Carrollton, for appellants.
The deed sought to be reformed in this suit is purely, simply and unequivocally a voluntary conveyance, a deed of gift, and no amount of argument or circumlocution can take it out of that class of instruments. Being such it clearly falls within the general rule that voluntary conveyances cannot be reformed.
Herod v. Robinson, 115 So. 40; Spencer v. Spencer, 75 So. 770, 115 Miss. 71.
There is no contention by the appellee that the deed was given in settlement of a family estate. Neither is there any charge of fraud. The case does not fall with- in any of the exceptions to the general rule.
Spencer v. Spencer, 115 Miss. 71.
The pleadings in this case show that the mistake in the description of the land was made, if in fact any mistake was made, a year and a day before the death of the grantor, and we suggest that that was ample time in which to detect the error, if any was made, and to have the grantor correct the error himself.
R. C. McBee, F. M. Witty and A. H. Bell, all of Greenwood, for appellee.
In the absence of evidence to the contrary the expressed consideration will be held to be true and only one, but it has been held that the consideration of a deed may always be inquired into when the principles of justice require it.
Martin v. Raleigh State Bank, 146 Miss. 1, 111 So. 448; 51 A. L. R. 442; 18 C. J. 266, sec. 222.
Accordingly it is held by an uncounted multitude of authorities that the true consideration of a deed of conveyance may always be inquired into, and shown by parol evidence, for the obvious reason that a change in or contradiction of the expressed consideration does not affect in any manner the covenants of the grantor or grantee, and neither enlarges or limits the grant.
And it is held that in equity either party to a deed may aver and prove against the other, or against the purchaser with notice, the true consideration on which the deed is founded, though it be different from that mentioned.
8 R. C. L. 969, sec. 41; Hitz v. National Metropolitan Bank, 28 L.Ed. 577, 111 U.S. 722; Hartford Connecticut Trust Co. v. Divine, 21 A. L. R. 134.
The amended bill only requests the court below to permit the appellee to introduce evidence that the consideration recited in the deed is not the actual consideration but that a different one is the true consideration, and is sufficient to fake the deed from the class of voluntary instruments to the class of instruments for consideration and not of gift, therefore subject to reformation. There is no rule of law that will permit the party to a law suit from introducing evidence in support of his bill, and the appellee in view of the well known rule of law that parol evidence is admissible to show the true consideration in a deed should be permitted to show, if she can, that the consideration was not love and affection alone, but a valuable monetary consideration paid by her husband to the grantor.
All grantees need not be parties to the consideration. And the consideration may be furnished by a third person.
Read v. Gould, 139 Ga. 499, 77 S.E. 642; 18 C. J. 163.
If the consideration can be shown to be different than expressed in the deed, it therefore follows that it is subject on proper proof to be reformed.
2 Restatement of Law of Contracts, 974, sec. 506; McMechan v. Warburton, Irish Law Reports, 1 Ch. Div. 435.
The action of the chancellor in overruling the demurrer to the amended bill of complaint is correct and the cause should be affirmed.
The appellee, Willie Shute Daves, nee Willie Shute, filed a bill to reform a deed, dated July 28, 1933, made to her by J. M. Shute, reading as follows:
...
To continue reading
Request your trial