Henderson v. Beasley

• Decision Date: 26 January 1897
• Citation: 38 S.W. 950,137 Mo. 199
• Parties: Henderson, Appellant, v. Beasley
• Court: Missouri Supreme Court

38 S.W. 950

137 Mo. 199

Henderson, Appellant, v. Beasley

Supreme Court of Missouri, First Division

January 26, 1897

Appeal from Daviess Circuit Court. -- Hon. E. J. Broaddus, Judge.

Reversed.

Hicklin & Hicklin and J. C. Leopard for appellant.

(1) Appellant relies for a reversal, upon the action of the court below, in overruling motion for new trial and motion in arrest. If Henderson bought to the row of trees or to a point south of them, or even to a point south of the north fourth of lot 8, then appellant is entitled to a reversal. Diggs v. Kurtz, 33 S.W. 815; Flynn v. Herye, 4 Mo.App. 360. (2) Or again, if in pursuance of the sale Henderson took possession to a point south of the row of trees, said point being agreed upon and recognized as the line between them by Beasley and Henderson, and Henderson upon the faith of such agreement as to line, planted trees and made other improvements on the land in dispute, appellant is entitled to a reversal. Jacobs v. Moseley, 91 Mo 457; Coleman v. Drane, 116 Mo. 387; Evans v. Kunze 128 Mo. 671.

Alexander & Richardson and Gaines for respondent.

(1) A mistake in a deed, to authorize its correction by a court of equity, must be a mutual one and the evidence to establish it must be clear and convincing. Bartlett v. Brown, 121 Mo. 353; Sweet v. Owens, 109 Mo. 1; Jacobs v. Moseley, 91 Mo. 457. (2) To entitle a party to the reformation of a contract for mistake, the mistake must be mutual; mistake on the part of the complainant alone will not suffice. Steinberg v. Ins. Co., 49 Mo.App. 255. (3) The supreme court will defer to the finding of a trial court in an equity case unless the preponderance of the evidence is against it. Rawlins v. Rawlins, 102 Mo. 563; Gottschalk v. Kircher, 109 Mo. 170; Bartlett v. Brown, 121 Mo. 353. (4) And the mistake must be established by evidence which will strike the mind of the chancellor as free from reasonable doubt. Steinberg v. Ins. Co., 49 Mo.App. 255; Forrester v. Scoville, 51 Mo. 268; Atkenson v. Henry, 80 Mo. 157.

OPINION

Brace, J.

This is an action to correct an alleged mistake in a deed executed by the defendant and his wife, dated the twelfth day of February, 1891, whereby he conveyed to the plaintiff lots 5, 6, 7, AND THE NORTH FOURTH OF LOT 8 IN BLOCK 2 in Kimball's addition to the town of Elm Flat in Daviess county, instead of "lots 5, 6, 7, AND TWENTY-FIVE FEET AND THREE INCHES OFF THE NORTH SIDE OF LOT 8 in Kimball's addition to the town of Elm Flat in Daviess county, which it is alleged in the petition is the correct description of the property bought and paid for, and which was intended to be conveyed by said deed -- and prays that the same be reformed to read accordingly.

Defendant in his answer denies that this last was the property bought and paid for by the plaintiff and intended to be conveyed, but avers in substance that there is a mistake in said deed, and that the true description of the property sold, paid for and intended to be conveyed, is lots 5, 6, 7, and THE FEET OFF THE NORTH SIDE OF LOT 8 in Kimball's addition to the town of Elm Flat in Daviess county, and prays that the deed may be reformed to so read. Issue was joined by reply.

After hearing the evidence the court dismissed the petition and cross bill, rendered judgment in favor of the defendant for costs and plaintiff appealed.

It appears from the evidence that at the time of the execution of the deed the defendant was the owner of five contiguous lots in Elm Flat lying in a row from north to south, fronting west and numbered respectively, from the north 5, 6, 7, 8, and 9; that the block in which they were situate was not numbered on the plat of the town, but seems to have been known as block 2. As there is and can be no question as to the indentity of the lots the insertion of the word "block 2" may be regarded as no material mistake.

The real bone of contention is as to the proper location of the south line of the premises, which the plaintiff bought and the defendant conveyed to him by his deed of February 12, 1891. Both parties concede that the deed does not properly locate that line, the plaintiff contending that the deed ought to have located it 25 feet and 3 inches south of the south line of lot 7, and the defendant that the deed ought to have located that line 10 feet south of the south line of lot 7.

It is conceded that at the time of the execution of the deed neither party knew the true location of the line between lots 7 and 8 or between any of the other lots, and that both were under the belief that each of the lots in the defendant's block was forty feet wide.

It appears from the evidence that under this impression, a bargain for the premises was negotiated on the eleventh of February in which the plaintiff agreed to pay the sum of $ 1,350 therefor, and in pursuance thereof the defendant caused a deed to be drawn conveying lots 5, 6 and 7 to the plaintiff for that consideration.

On the next day the parties, together with the scrivener, met upon the premises and the question of the location of the south line of...