Judson v. Mullinax

• Decision Date: 17 October 1898
• Parties: JUDSON et ux. v. MULLINAX.
• Court: Missouri Supreme Court

47 S.W. 565

145 Mo. 630

JUDSON et ux. v. MULLINAX.

Supreme Court of Missouri, Division No. 2.

October 17, 1898.

REFORMATION OF INSTRUMENTS — MISTAKE — EVIDENCE.

Plaintiff sold defendant a piece of land, a portion of which was described in the deed as "64 feet and 5 inches off the west side of lot 12." While the negotiations were pending, they made an examination of the land in a general way. There was a fence running through lot 12, and defendant asked plaintiff if that was the line, to which plaintiff replied that he supposed it was near it. Defendant said that he would have a survey made if he purchased. The description in the deed was the same as that contained in the deed received by plaintiff from the original owner of the whole tract. After the sale, it was discovered that a portion of the land conveyed to defendant, in lot 12, was across the fence, and did not belong to plaintiff, who brought suit to reform the deed. There was no mistake made by the scrivener drawing the instrument. Held, that the evidence was insufficient to show any mistake that would warrant equity in reforming the instrument.

Appeal from circuit court, Mercer county; P. C. Stepp, Judge.

Suit by William W. Judson and wife against George T. Mullinax. From a judgment in favor of defendant, plaintiffs appeal. Affirmed.

H. J. Alley and H. G. Orton, for appellants. M. F. Robinson and Ira B. Hyde, for respondent.

GANTT, P. J.

This is a suit in equity to reform a warranty deed executed by plaintiffs to defendant, on the 9th of August, 1894. The description of the land in the deed is in these words: "The following described lots, tracts, or parcels of land, lying, being, and situate in the county of Mercer and state of Missouri, to wit: All lots Nos. two (2) and eleven (11) in Clements' addition to the town of Princeton, and all that part of Clements' addition bounded as follows: Commencing at the southeast corner of said lot eleven (11), and running thence east seventeen (17) feet, and thence in a northerly direction to the northeast corner of said lot two (2), and thence in a southerly direction, along the last line of said lots (2) two and (11) eleven, to the place of beginning. Also all that part of said lot one (1) bounded as follows: Commencing at the north part of said lot one (1), and running south, along the east line of said lot one (1), two hundred and nineteen (219) feet and eight (8) inches; thence west, to the east line of the tract last described; thence in a northerly direction, to the place of beginning. Also, all that tract of land between said lot two (2) and Oak street, as now located. Also, lot thirteen (13), and sixty-four (64) feet and five (5) inches off the west side of lot twelve (12), in Clements' addition to the town of Princeton." Plaintiffs allege that in writing said deed the same was so drawn as to include and convey a part of said lot 12 not intended by the parties to said deed to be included in and conveyed thereby, in this: That the said deed purported to convey 64 feet and 5 inches off the west side of said lot 12, instead of "all that part of said lot twelve west of said post and board fence," which said post and board fence commenced at the south end of said lot 12 at a point 17 feet 5 inches east of the southwest corner, and runs thence northerly to the north line of said lot 12, and 34 feet east of the northwest corner of said lot. The accompanying plat A will more clearly indicate the lines of the several lots and tracts as set out in the deed. The red line through lot 12 shows the location of the east line of defendant's land according to the deed. The dotted line running north and south through said lot 12 represents the fence which plaintiffs allege was intended to be the eastern line of the parcel conveyed.

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The heavy lines are the red lines referred to in the opinion.

The circuit court made a finding of facts as follows: "(1) The court finds as facts proven in this case that, at the time of the purchase by defendant of the property from the plaintiff, the property the plaintiff claimed to own was inclosed in three inclosures by fences, — the inclosure on which was situated the house, the barnyard, and the pasture lot including lot thirteen and that part of lot twelve west of the post and board fence in controversy. And the court further finds that the part of lot twelve not in said pasture lot was inclosed and used at the time by other parties as a part of the Boyd and Lane property; and...