Kanan v. Hogan

• Decision Date: 16 March 1925
• Docket Number: 24255
• Citation: 270 S.W. 646,307 Mo. 269
• Parties: DENNIS KANAN, Appellant, v. ESTELLA HOGAN et al
• Court: Missouri Supreme Court

270 S.W. 646

307 Mo. 269

DENNIS KANAN, Appellant, v. ESTELLA HOGAN et al

No. 24255

Supreme Court of Missouri

March 16, 1925

Appeal from Clinton Circuit Court; Hon. Guy B. Park, Judge.

Reversed and remanded (with directions).

Frank B. Klepper and R. H. Musser for appellant.

The court erred in its ruling that the deed in controversy was null and void and could not be reformed. The term void is perhaps seldom, unless in a very clear case, to be regarded as implying a complete nullity, but is in a legal sense subject to large qualifications, in view of all the circumstances calling for its application and the rights and interests to be affected in a given case. Brown v Brown, 50 N.H. 552; Kearney v. Brown, 50 Mo 287; Soeker v. Kerr, 202 Mo.App. 27. "Void" in one recognizable use, does not signify that it is void in such a sense that it cannot be rendered valid, but merely that it is void unless and until it shall be rendered valid by some event or act. 8 Words & Phrases, Title "Void," pp 7332 to 7335; Pheimer v. Union Depot, 31 Minn. 289; Words & Phrases (2 Ser.) "Void," p. 1191; Nolen v. Henry, 190 Ala. 540. (a) Under the evidence in this case, the court erred in not promptly exercising the power vested in a court of equity and granting the relief. (b) Evidence of "Mistake of fact" is shown by the instrument itself, in that it contains words and an effect that the parties did not intend to incorporate therein. 2 Encyclopedia of Evidence, pp. 40, 47, 65, 86; Pitman v. Hennesey, 48 N.Y. 415; Marks v. Taylor, 23 Mich. 152; Williamson v. Brown, 195 Mo. 329; Corrigan v. Tiernay, 100 Mo. 280; Maze v. Boehm, 281 Mo. 512; Dougherty v. Dougherty, 204 Mo. 237. (c) Whenever there has been a material omission or mistake in the deed, so that it fails to express what the parties intended, a court of equity may reform and correct it in accordance with the transaction as it was actually agreed upon, and reformation will be allowed. 34 Cyc. 910, 911; 5 Thompson on Real Property, sec. 4421, p. 535; 4 Thompson on Real Property, sec. 3353, p. 465; 5 Wigmore on Evidence, pp. 278-286; 1 Story on Contracts (14 Ed.) sec. 29, note; Horine v. Ins. Co., 201 S.W. 959; Peterson v. Casualty Co., 249 S.W. 150; Partridge v. Partridge, 220 Mo. 325; Cramp v. United States, 239 U.S. 221; Barnes v. Peterman, 136 Ga. 264; Baird v. Railroad, 210 N.Y. 225; Whittaker v. Lewis, 264 Mo. 215; McIntyre v. Casey, 182 S.W. 966. (d) Deeds may be reformed in equity for fraud or mutual mistake, so as to affect the intention of the parties, and this may be done upon parol evidence, and reformation is not confined, because of mistakes, to any one class of instruments, but applies to deeds equally with other instruments. Williams v. Hamilton, 65 Am. St. 507; Pinkham v. Pinkham, 60 Neb. 600; Hansbrandt v. Hoffer, 117 Iowa 103; Corrigan v. Tierney, 100 Mo. 280. (e) Where a mistake has been made by a draftsman in the preparation of a deed, a court of equity will afford relief by directing a reformation of the deed, so as to carry out the intention of the parties when the deed was written. Lasmaster v. Morgan, 200 S.W. 32.

Elton T. Harris and E. G. Robison for respondents.

The defendants contend that the judgment of the trial court is correct, and should be sustained on the following grounds: (1) That the purported conveyance from Amanda Kanan to Dennis Kanan is absolutely void. (2) That a void instrument cannot be reformed; that a nullity is incapable of reformation, confirmation or ratification. (3) That the evidence shows that the consideration for the purported conveyance is a gift, that the grantee is merely the donee of the donor, and that in such a case an instrument cannot be reformed as against the donor or her successors, in this case her children. (4) That the evidence does not show a mutual mistake or resulting trust, but a mistake as to the legal effect of the deed. (5) The purported conveyance is testamentary in character and passes no title to the grantee. It is the same as a will with one attesting witness, i. e., lacks the formal legal requisites necessary to make it a will, and is void. Terry v. Glover, 235 Mo. 547; Givens v. Ott, 222 Mo. 411; Aldridge v. Aldridge, 202 Mo. 575; Murphy v. Gabbert, 166 Mo. 602; Goodale v. Evans, 263 Mo. 231; Hohenstreet v. Segelhorst, 227 S.W. 83. (6) A void agreement has no standing and cannot be reformed. Ainsworth v. Morrill, 160 P. 1089. Equity will not reform a void instrument. Cleveland v. Bateman, 158 P. 648. The doctrine of reforming instruments is not applicable to one which is void on its face. Evarts v. Steger, 6 Ore. 55; Griffin v. McIntosh, 176 Mo. 398. (7) The mistake, if one was made in preparing the deed, was a mistake as to the legal effect of the deed, and equity cannot reform a deed under such conditions. Griffin v. Miller, 188 Mo. 327; Parker v. Vanhoozer, 142 Mo. 621; Tesson v. Ins. Co., 40 Mo. 33; Norton v. Highleyman, 88 Mo. 621.

Graves, J. All concur, except Atwood, J., not sitting.

OPINION

GRAVES

The petition is in two counts. The first asks for the reformation of a deed made by Amanda Kanan to her husband, Dennis Kanan, purporting to convey some three city lots in the city of Cameron, Missouri, which property had for years been the home of the grantor and grantee. It is averred that the deed was made for the purpose of retaining in the wife a life estate, and then conveying the remainder in fee to the husband, the said property, as alleged, being paid for by funds turned over to the wife by the husband. The vital averment is that the scrivener, selected by the husband and wife, did not draw the deed in accordance with the expressed desires and directions of the wife and the understanding of the parties. It is charged that the scrivener was ignorant about the form of deeds, and that he made a mistake in the use of certain language therein. The deed is short (evidently an Iowa form being used, as the deed was executed in Iowa before a notary public in said state), and we quote it thus:

"Quit Claim Deed.

"Know all Men by These Presents:

"That I, Amanda Kanan, wife of Dennis Kanan, of the County of Appanoose and State of Iowa, in consideration of the Love I have for him, and the Sum of One Dollar, in hand paid by Dennis Kanan, of the County of Appanoose and State of Iowa, do hereby Remise, Release and Quit Claim unto the said Dennis Kanan, her Husband, all the right, title and interest in and to the following described premises, with all appurtenances thereunto belonging, situated in the County of Appanoose, and State of Iowa, to-wit: All the Lots Thirty one (31), Thirty two (32), and Thirty three (33), in Giauque in Addition to the City of Cameron in the County of Clinton, State of Missouri, this to take effect at and after My Death.

"And the said Amanda Kanan hereby relinquishes her right of dower in and to the foregoing described premises.

"Signed this 12th day of October, A. D. 1916.

"Amanda Kanan.

"In Presence of:

Mrs. R. K. Hockett.

Cecil Wright."

We omit the notary's acknowledgment for brevity of statement.

The italicized words are the ones said to have been put in the deed contrary to the directions given to the notary. This count of the petition also avers that the deed contemplated by the parties was one based upon a valuable consideration and pursuant to agreement of the parties. Such portion of the petition, after describing the property reads:

"And that the said deed was made for a good and valuable consideration, namely, to repay this plaintiff the purchase price of the said property, the same having been paid for by him, and the legal title thereto having been placed in the said Amanda Kanan's name, and the further consideration of the plaintiff having furnished a home for and his agreement to continue to furnish a home for Cecil Wright, now Cecil Lawler, and defendant above, until the said Cecil Wright married or provided herself a home.

"That it was further understood and agreed between the said parties that the said Amanda Kanan should convey to the plaintiff the further estate in said lands, reserving to herself an estate for life therein, the fee simple title thereafter or remainder over to be conveyed absolutely to this plaintiff."

The second count is one to ascertain and determine title, but such count is not exactly in the usual form of action brought under our statute. It is, however, sufficiently in such form as to be denominated a statutory action to ascertain and determine title.

The several answers place in issue the averments of both counts of the petition, and at least one of them raises other matters which will be noted, if required. We find no reply noted in the record, but this is immaterial, as the trial proceeded as if one had been filed. The trial court dismissed the petition of plaintiff, and entered a judgment for costs against him. From such judgment plaintiff appealed.

The defendant John Wright took a different course from the other defendants, according to respondents' additional abstract. He moved to strike out the first amended petition of the plaintiff, which motion the court overruled, and the said John Wright saved an exception to such ruling, elected to stand upon his motion, and refused to plead further. Judgment by default went against him. There is a companion case, in which John Wright is the appellant, and further notice of his contention will be noted in that case. This outlines the pleadings and the judgment. Other matters are left to the opinion.

I. The law is well settled that a written instrument will be reformed in equity to conform to the agreement and understanding of the interested parties, if there has been a mutual mistake made in drawing the instrument. [Dougherty v. Dougherty, 204 Mo. 228; Maze v. Boehm, 281 Mo. 507....