Griffin v. Miller

• Decision Date: 16 May 1905
• Citation: 87 S.W. 455,188 Mo. 327
• Parties: GRIFFIN et al. v. MILLER, Appellant
• Court: Missouri Supreme Court

87 S.W. 455

188 Mo. 327

GRIFFIN et al. v. MILLER, Appellant

Supreme Court of Missouri, Second Division

May 16, 1905

Appeal from Polk Circuit Court. -- Hon. Argus Cox, Judge.

Affirmed.

C. H Skinker and E. D. Upton for appellant.

(1) To establish a mistake it is not necessary to show that particular words were intended to be used, but it is sufficient to show that the contract or deed as executed does not effectuate the intention of the parties. Leitensdorfer v. Delphy, 15 Mo. 160; 2 Pom. Eq. Jur (2 Ed.), sec. 845; Am. & Eng. Dec. Eq., 239, note; 66 Mo 519. Even if the party heard the deed read and supposed its legal effect was different from that given it by law, still it may be reformed. Corrigan v. Tiernay, 100 Mo. 276. (2) The mistake of Crow, the justice of the peace, in inserting the objectionable clause in the deed was a mistake of fact, and not a mistake of law. Bush v. Merriman, 87 Mich. 260; Gross v. Lehr, 47 Pa. 520. (3) Where a reformation of a deed would be decreed between the original parties thereto, similar relief will be given in suits between parties claiming under them. Hagman v. Shaffner, 88 Mo. 24. As the evidence conclusively shows that Collon McIntosh intended to convey the land in controversy to his son, J. H. McIntosh, and that after the execution of the deed he considered that he had conveyed it to him, and as the justice of the peace who wrote the deed and all of the parties thereto supposed it was a valid conveyance, and intended it as such, the mistake of the justice in inserting the clause because he thought it would "protect the old folks" should not be allowed to defeat the conveyance, and the deed should be reformed by striking out said clause. (4) A deed cannot be delivered to the grantee as an escrow. 15 Central Law Journal 162; Jones v. Shaw, 67 Mo. 667. (5) "In the construction of deeds, words are not the principal thing, but the intent and design of the parties; and, therefore, when there are words in a deed that appear repugnant to the other parts of it, and to the general intention of the parties, they will be rejected." 4 Greenl. Cruise, 307; Jamison v. Fopino, 48 Mo. 194; Briant v. Garrison, 150 Mo. 655; Blanchard v. Morey, 56 Vt. 170; McDowell v. Brown, 21 Mo. 57.

Ross & Sea and Rechow & Pufahl for respondents.

(1) This case having been once decided by this court that decision becomes the law of the case upon the points passed upon. Com. Co. v. Bank, 35 Mo.App. 472; McKinney v. Harral, 36 Mo.App. 337; Lane v. Railroad, 35 Mo.App. 567; Keith v. Keith, 109 Mo. 130. (2) The evidence of delivery or the waiver of the condition is less satisfactory than it was on the first trial. Griffin v. McIntosh, 176 Mo. 392. And the court having there held that there was no delivery that holding is conclusive on this appeal. (3) There is no evidence to warrant a reformation. There is not the slightest pretense that the grantor did not know that the clause was in there. In order to warrant the reforming of an instrument, the evidence must be clear and convincing that the instrument does not express the intention of the parties. Steinburg v. Ins. Co., 49 Mo.App. 255; Sweet v. Owens, 109 Mo. 1; Cooper v. Deal, 114 Mo. 527; Bartlett v. Brown, 121 Mo. 362; Fanning v. Doan, 139 Mo. 410; Parker v. Vanhoozer, 142 Mo. 627; Bender v. Zimmerman, 145 Mo. 636. (4) A court will not grant relief against a mistake of law. State ex rel. v. Ewing, 116 Mo. 129; State ex rel. v. Shipman, 125 Mo. 436; Hendrix v. Wright, 50 Mo. 311; Price v. Estell, 87 Mo. 386; St. Louis v. Priest, 88 Mo. 612.

GANTT, J. Fox, J., concurs; Burgess, P. J., absent.

OPINION

GANTT, J.

This is the second appeal in this cause. The first appeal will be found in the 176 Mo. 392, 75 S.W. 677, under the style of Susan B. Griffin et al. v. J. H. McIntosh.

The judgment on the first appeal was reversed and the cause remanded.

After the first cause had been appealed and before the reversal in this court, the defendant McIntosh conveyed the land to Miller, and the latter was substituted as defendant. On the trial anew in the circuit court judgment was rendered for the plaintiffs, and the defendant Miller appeals.

The action now, as then, is one in ejectment to recover two undivided eighths of certain real estate in Polk county, by plaintiffs as heirs at law and children of Collon McIntosh and Jane his wife.

The answer admits that Mrs. Griffin and Mrs. Wingfield are two of the eight children and heirs at law of Collon McIntosh and Jane McIntosh his wife, both deceased. Defendant further alleges that said Collon McIntosh and Jane his wife conveyed to James McIntosh, another of the children and heirs of said Collon McIntosh, the land in controversy, and that thereafter said James H. McIntosh conveyed to the defendant Miller sixty acres of said land therein; that at the time of the making of the deed from Collon McIntosh to James McIntosh the grantor was old, feeble and illiterate; that by the mistake of the scrivener and without the direction or knowledge of the grantor the following clause was inserted in the deed, which is in the form of a general warranty deed, except as to said clause: "Upon this express condition that the said Collon McIntosh and Jane McIntosh is to live on the farm till their death as one of the family and to hold the deed in their possession till their death, then this deed is to be delivered to James H. McIntosh or his heirs."

The defendant alleges that the said deed was made in consideration of the support, care, nursing and attention given Collon McIntosh by James H. McIntosh, and that said deed was delivered in the lifetime of the grantor. He prays that the deed be reformed so as to show the true intention of the grantors by striking out the clause above stated, and that a full and perfect and complete title be declared to be vested in him.

On the former appeal it was held by this court that the said instrument was testamentary in character and did not pass a present interest in the land to the grantee and hence was not good as a deed, although all the parties thereto intended that it should take effect at the maker's death; and that the evidence showed that in turning over the deed to the grantee, Collon McIntosh did not make an unequivocal delivery and relinquishment thereof, and the authorities were cited authorizing that conclusion.

By the answer in this case it will be observed that the defendant seeks to have said instrument reformed by striking out the testamentary condition above recited, and the sole question presented is whether the circuit court erred in refusing the reform of the instrument as prayed by the defendant. As in the former case, the evidence tends to show that, at the time of the execution of this instrument, Collon McIntosh and his wife were old people and were growing very feeble, and that James McIntosh at their request had gone to live with them and had cared for and attended the old man up to the time of his death; that Collon McIntosh requested John W. Crow, a justice of the peace in said county, to draw a deed from said Collon and Jane McIntosh to said James H McIntosh. The justice testified that he went over to the residence of Collon McIntosh and they talked freely about the matter; that he inserted the said condition that Collon and his wife were to live on the farm until their death as one of the family and to hold the deed in their possession until their death, of his own motion; that the old man did not direct him to put that clause in there; that he did it to protect the old man; that he did not remember that he read the deed twice to him before it was executed, but that he did read the deed over to him; that he always read a deed over to anybody for whom he wrote one; and that he remembers that he read this deed over to him before it was executed; that his memory was better when he testified on the former trial in relation to just what took place when the deed was made than it is now; that he did not remember how he testified before, but that he read this deed and this clause to him before it was executed; that the old man knew it was in there, and made no objection to it, and did not say anything about it, and that both the old man and the old...