Johnston. v. 1945, (No. 9692)
| Decision Date | 06 November 1945 |
| Docket Number | (No. 9692) |
| Parties | C. I. Johnston et al. v. Floetta Terry et al.1945. |
| Court | West Virginia Supreme Court |
A court of equity has power and jurisdiction to decree the reformation of a deed executed through a mutual mistake of the parties as to what is intended therein, or through a mistake of a scrivener in failing to make the agreement express the mutual intention of the parties, where such reformation is sought as between the parties, or the successor of either, who, at the date he acquired an interest in the property affected by such deed, had notice of the grounds on which reformation is sought.
Reformation of a deed or other writing by a court of equity on the grounds of a mutual mistake of the parties, or a mistake of the scrivener will not be decreed where to do so would prejudice the right of an innocent purchaser for value of the property covered by the deed sought to be reformed.
In a suit to reform a deed, parol testimony may be introduced to show a mutual mistake of the parties to such deed, or a mistake of the scrivener in failing to make the written instrument prepared by him conform to the intention of the parties thereto.
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.
One who conveys real estate by a deed containing a covenant warranting generally the title to the property conveyed, and who at the date of such deed has no title, or a defective title thereto, is estopped from thereafter assert ing, as against his grantee, or his grantee's successor in title, any title to such lands which he, the grantor, may acquire subsequent to the date of said deed.
"A purchaser of real estate, contracting with a claimant not in possession, is put on inquiry by the fact that another is in possession of the property; and if he takes a conveyance from such claimant, he is charged in favor of the person so in possession with all the information such inquiry would have disclosed if diligently pursued." Page v. Westfield Pharmacy, Inc., 98 W. Va. 558.
A finding of a trial court on a question of fact will not be disturbed by this Court, except where such finding is contrary to the plain preponderance of the evidence, or is without evidence to support it.
Appeal from Circuit Court, Mercer County.
Suit by C. I. Johnston and wife against Floetta Terry and others for reformation of a deed, wherein defendants filed a crossbill. From a decree granting reformation, defendants appeal.
Affirmed.
Randolph Bias, for appellants.
Walter G. Burton and Ajax T. Smith, for appellees. Fox, Judge:
C. I. Johnston and Savannah H. Johnston, his wife, instituted their suit in the Circuit Court of Mercer County, praying that their deed to W. B. Ramsey, Jr., and Ozella Ramsey, dated August 13, 1936, be reformed to the extent only of excluding therefrom a tract of 7.73 acres of land, known as the "mill lot", which tract of land was covered by the description contained in said deed, an allegedly conveyed, by mutual mistake of the parties, and through the mistake of the scrivener who prepared the deed aforesaid. From a decree of said court, grant ing the relief prayed for, as to said deed, and a subsequent deed from the Ramseys to Floetta Terry, the defendants, Floetta Terry, W. B. Ramsey, Jr., and Ozella Ramsey prosecute this appeal.
On June 8, 1936, by deed referred to in the record, but not a part thereof, the First National Bank of Narrows, Virginia, conveyed to C. I. Johnston several tracts of land, one of which was known as a tract of 200 acres situate on East River in Mercer County. On July 29, 1938, Johnston and his wife conveyed to C. H. Lankford and Mamie Lankford, his wife, two parcels of land, one described as eight acres and the other as four acres, which deed was promptly recorded. A subsequent survey of the tract described therein as eight acres discloses that the actual acreage thereof is 7, 73 acres. At the date of the conveyance to the Lankfords, a water-power grain mill was located on the 7.73 acres, and the milldam on East River, from which water power was procured, was situated on the adjoining four-acre tract. Shortly after this conveyance, one W. E. White, now deceased, the father of the defendants below, Floetta Terry and Ozella Ramsey, negotiated with Johnston for the purchase of a two hundred-acre tract of land, lying on the south side of East River, and on both sides of the Norfolk and Western Railway right of way. White had been the former owner of the two hundred acres, of which it is contended the mill lot was a part, and the four acres, and for a long time had operated the mill above referred to. He had met with financial reverses, and was not in position to take title to any property in his own name; but he did secure an agreement from Johnston to sell the two hundred acres at a price of twelve hundred fifty dollars, payable partly in cash and a substantial balance to be represented by notes to be secured by a deed of trust on the land conveyed. It was further suggested that the land be conveyed to a son of W. E. White, but discussion revealing that the son had not then reached the age of twenty-one years, and by reason of that fact could not properly execute a deed of trust, as contemplated, that plan was abandoned. White induced Johnston to cause his attorney, now deceased, to prepare a deed for the land he was purchasing, by which said land was to be conveyed to W. B. Ramsey, Jr., and Ozella Ramsey, son-in-law and daughter of White. Neither Ramsey nor his wife had anything to do with the negotiations leading up to the conveyance afterwards made to them by Johnston. On August 13, 1936, Ramsey and his wife were induced by White to go to Princeton for the supposed purpose of witnessing some papers, and when they arrived at Princeton and the office of Johnston's attorney, they found what White really wanted was to secure their consent to taking title in their names to the two hundred-acre tract of land he had arranged to purchase from Johnston. W. B. Ramsey, Jr., objected to this plan, whereupon a conference was had outside the attorney's office between Johnston, White and Ramsey, in which Ramsey finally agreed to take title to the land in question. Thereupon Johnston and his wife executed the deed, Ramsey and his wife executed the purchase money notes, and a deed of trust securing the same, and the transaction was closed. The conveyance made by Johnston and his wife was by a deed with a covenant of general warranty, from which we quote the following paragraph:
"For all of which said consideration the said parties of the first part doth bargain and sell, grant and by these presents convey unto the said parties of the second part with covenants of general warranty of title all of a tract of 200 acres more or less, of real estate lying in the district of East River Mercer County, West Virginia, and on the waters of East River which 200 acres more or less is a portion of the lands conveyed to the said C. I. Johnston, male grantor herein by First National Bank of Narrows, a corporation, by deed bearing date the 8th day of June 1936 and of record in the county court clerk's office of Mercer county in Deed Book No. 226 page 503, which said 200 acres of land herein conveyed is bounded on the south by the lands of L. E. White, et als; on the east by the lands of Green Brink ley and the Burton lands; on the north by East River and on the west by the lands of W. T. White and Fanny Brown, and which 200 acres comprise all the lands so conveyed by said deed to C. I. Johnston which lie south of East River and east of the lands of W. T. White and Fanny Brown."
it is admitted by the parties that the description quoted above covers the 7.73 acres known as the mill lot now in controversy.
Following the deed from Johnston to the Lankfords, and on July 30, 1936, Lankford and his wife conveyed to Leslie E. Gadd, Trustee, the two tracts described as eight and four acres, to secure to Johnston the payment of the sum of twenty-seven hundred dollars, being a part of the purchase money for said land so conveyed by Johnston to the Lankfords. The Lankfords defaulted in the payment of the notes secured by the deed of trust, and Gadd, as trustee, sold said lands at public auction, Johnston becoming the purchaser thereof, and the said two tracts of land were conveyed to him by said trustee by deed dated October 7, 1937, by which the title to both of said tracts of land became re-vested in Johnston. The evidence is clear and convincing that, from the time of the conveyance of the two lots of land aforesaid to Lankford to the date of the institution of this suit, Lankford and C. I. Johnston had actual, continuous possession of the 7.73 acres, as well as the 4-acre tract adjoining; that neither Ramsey, his wife, nor the defendant Terry ever at any time had possession thereof; and that not until early in 1942, and after the death of W. E. White, was any question ever raised as to the ownership of the 7.73 acres of land in question. On March 21, 1942, W. B. Ramsey, Jr., and Ozella Ramsey, by deed without warranty, conveyed to the defendant, Floetta Terry, the real estate which had been conveyed to them by Johnston by the deed of August 13, 1936, and shortly thereafter, as will be hereafter noted, a question arose as to the ownership of the 7.73 acres. The defendant Terry, acting through her husband as her agent, and with the assistance of an attorney then took up with Johnston the question of the ownership of this property, and attempted to secure a settlement of the dispute, and, being unsuccessful, threatened suit to effect such settlement. Thereupon Johnston and his wife instituted...
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