Hohneke v. Ferguson

• Decision Date: 14 July 1976
• Docket Number: No. 40468,40468
• Citation: 196 Neb. 505,244 N.W.2d 70
• Court: Nebraska Supreme Court
• Parties: Lyle HOHNEKE, Appellee. v. William Franklin FERGUSON, Appellee, Impleaded with Lyle R. Hohneke et al., Appellants.

Page 70

244 N.W.2d 70

196 Neb. 505

Lyle HOHNEKE, Appellee. v. William Franklin FERGUSON, Appellee Impleaded with Lyle R. Hohneke et al., Appellants.

No. 40468.

Supreme Court of Nebraska.

July 14, 1976.

Syllabus by the Court

1. An action to reform a written instrument is equitable in nature and on appeal to this court is triable de novo.

2. A purely voluntary conveyance may not be reformed in equity at the suit of the grantee against the grantor during his lifetime without his consent.

3. A purely voluntary conveyance will not be reformed at the behest of the grantee after the grantor's death as against the person who in the absence of reformation takes the property under the will of the grantor where the evidence establishes that the grantor would not have consented to the reformation had he lived.

Charles E. McDermott, Duane W. Schroeder, B. B. Bornhoft, Wayne, for appellants.

Olds & Swarts, Wayne, for appellees.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON and BRODKEY, JJ.

CLINTON, Justice.

The question on this appeal is whether a certain gift deed, containing an admittedly erroneous description, may be reformed at the behest of the grantee after the death of the grantor. The District Court, without making any specific findings or stating any conclusions of law, granted the reformation. We reverse.

Both parties cite and rely upon principles announced in or claimed to be drawn from statements of this court in Dowding v. Dowding, 152 Neb. 61, 40 N.W.2d 245. We there noted that: 'Courts generally agree that a purely voluntary conveyance may not be reformed in equity at the suit of the grantee against the grantor during his lifetime without his consent.' That this is the general rule there appears to be no doubt and we find no cases holding to the contrary. See, Annotation, 69 A.L.R. 423, part II, p. 424; Annotation, 128 A.L.R. 1299, part II, p. 1300; 76 C.J.S. Reformation of Instruments § 10a to c, pp. 333, 334; 66 Am.Jur.2d, Reformation of Instruments, § 42, p. 566.

The underlying rationale for the rule is set out at 66 Am.Jur.2d, Reformation of Instruments, section 42, page 566: 'Equity will not decree reformation of a gift over the opposition of a grantor, since such opposition denies an essential element of the gift--namely, the voluntary action of the donor. . . . There being no consideration moving to the grantor, the volunteer has no claim on him. If there is a mistake or a defect, it is a mere failure in a bounty which the grantor was not bound to make and thus is not bound to perfect.'

In Dowding v. Dowding, supra, we noted that "a volunteer must take the gift as he finds it," quoting M'Mechan v. Warburton, 1 Ir.R. 435 (1896).

The precise question we must answer here is whether the above principles are applicable under the particular facts of this case where the grantee brings the action not against the grantor who is deceased, but against the residuary devisee of the grantor's will. In Dowding v. Dowding, supra, we said that 'the principles precluding reformation of a voluntary conveyance at the suit of the grantee against the grantor during his lifetime do not ordinarily, as a matter of law, apply in favor of the grantor's heirs at law after his death.' The grantee relies upon the above statement to support his position and the judgment of the trial court in his favor. The defendant, residuary legatee, however, takes the position that the rules as actually applied in Dowding v. Dowding, supra, do not fit this case because here the evidence supports the conclusion that the grantor, had she lived, would not have consented to the reformation, whereas in Dowding v. Dowding, supra, the evidence tended to support the conclusion that the grantor would have corrected the mistake during his lifetime had he known of it. In Dowding v. Dowding, supra, we found that: "Under the record here presented, the . . . (grantor) would doubtless have desired to make the correction sought by this (reformation) action, had he learned of the mistake in his lifetime." We there also quoted the following language from M'Mechan v. Warburton, supra: "It was contended by the defendant Warburton that, as this was a voluntary deed, this court cannot interfere to rectify it in favour of volunteers. The elementary principle of this Court, that it will not interfere to enforce specific performance of an incomplete voluntary agreement, or to rectify an erroneous voluntary disposition of property in favour of a volunteer, is subject to this exception, that after the death of the donor it will interfere to rectify a disposition which is clearly proved to have, through mistake, failed to carry out the proved intention. . . . If the donor were living it would have, of course, been competent for him to consent to such rectification, or to dissent from it. If the latter, it could not be reformed against his will, for a volunteer must take the gift as he finds it; but after his death, And in absence of proof of any change of intention, it cannot be assumed that he would have dissented, and it might even be presumed that he would not dissent." (Emphasis supplied.) This statement tends to support the proposition that the court will allow the reformation of a deed against a grantor's heirs if the grantor himself would have permitted such a...