Koontz v. Owens

• Decision Date: 02 March 1892
• Parties: KOONTZ v. OWENS et al.
• Court: Missouri Supreme Court

18 S.W. 928

109 Mo. 1

KOONTZ v. OWENS et al.

Supreme Court of Missouri, Division No. 2.

March 2, 1892.

EQUITY — REFORMATION OF DEED — WITNESSES — PRIVILEGED COMMUNICATIONS.

1. The description in a deed will not be reformed for mistake unless the evidence is most clear and convincing.

2. Communications made to a lawyer employed to draw a will, relative to the amount of land which the testator intended to convey by a certain deed theretofore executed, are not admissible in a suit to reform the deed after the testator's death, on the ground of mistake.

3. Where a person conveys land to his daughter, and after his death the daughter sues to have the deed reformed for mistake, and offers evidence to show that she had advanced money to her father, and that the loan was the consideration for the deed, it is proper to show that all her demands had been probated and paid.

Appeal from circuit court, Jasper county; M. G. McGREGOR, Judge.

Suit by Mamie Koontz against Francis M. Owens and others to correct a mistake in a deed. From a judgment denying the relief, plaintiff appeals. Affirmed.

E. O. Brown, for appellant. T. B. Haughawout, for respondents.

GANTT, P. J.

This is a suit in equity begun in the circuit court of Jasper county by Elizabeth A. Sweet, formerly Hauts, to correct an alleged mistake in a deed to certain lands in that county, by Jeremiah Stout, now deceased, to said Elizabeth Sweet, on 3d day of April, 1884. Since this appeal was taken, Mrs. Sweet has died, and Mamie Koontz, the sole heir of Mrs. Sweet, has been substituted as appellant herein. The defendants Francis M. Owens and her husband, David D. Owens, Francis Folger and her husband, Anson Folger, William Stout and George Stout, appearing by their attorneys, answered, denying the alleged mistake in the description of said real estate, and for further defense alleged that Jeremiah E. Stout, at the time of making said deed, was mentally incapacitated from transacting business, and that the said Elizabeth A. had obtained the deed in question by the exercise of an undue influence over him. The reply to the separate answer of Francis M. Owens et al. was a general denial as to the new matter therein contained. The defendant Mary M. Records filed her answer consenting that the deed might be corrected and reformed as prayed in the petition, and the defendants Susan K. and H. E. Bradbury also filed a like answer consenting that judgment be rendered, correcting and reforming said deed; the defendant Sarah C. Hite and her husband, Orin Hite, although duly served with process, made default. The case was tried before the court in November, 1889, and resulted in a judgment divesting title from Mary M. Records and Susan K. Bradbury to said real estate, and investing same in said Elizabeth A., and a dismissal of the bill as to the other defendants, from which judgment Elizabeth A. appealed to this court. The evidence shows that Jeremiah Stout was a German. He removed to Jasper county in 1869. His brother-in-law Hannawalt, and his son-in-law Owens, and he purchased 80 acres of land together, and afterwards divided it. In time he became the owner of Hannawalt's share also, and this gave him 49 acres. He afterwards bought 55 acres adjoining. The land lies some six or seven miles from Carthage, and is reasonably worth $50 per acre. His wife died about 1st November, 1877. At that time the plaintiff was living in Carthage. She was a widow with one child, the present appellant here. She owned a small residence in Carthage, and kept boarders for a living. After her mother's death Mrs. Hauts rented her house for some $8 per month and went to live with her father on the farm. The evidence tends to show he had the ordinary amount of stock, and provided well for his household. In 1884 he built a new house on the farm, which cost him some $1,200 or $1,500. He mortgaged the 55 acres for $800, and the weight of the evidence tends to prove that Mrs. Hauts borrowed $500 on her house, and loaned it to her father. In 1884 he made her a deed to an undivided one-third of the 49 acres or "home tract." This deed was acknowledged April 3, 1884, and recorded May 5, 1884. Two years later the old gentleman died, at the advanced age of 80 years. His estate was finally settled May, 1888. He left a will of date April 5, 1884, which was duly probated, which is as follows: First, to Mrs. Hauts he bequeathed his single buggy and harness and his bay mare and one cow; second, to his grandson George Stout, $300; third, the remainder of his estate to be divided between his heirs share and share alike, making the heirs of his deceased son, Christian Stout, share the same interest that he would be entitled to if living, "except that I will that my daughter Sarah K. Bradbury have $250 less than the other heirs," and that his daughter Elizabeth Hauts take only the property hereinabove described. The parol evidence on the part of plaintiff tended to show that Jeremiah Stout directed the scrivener Tower to convey the whole of the "home tract" to Mrs. Hauts, and that he had made declarations to the various witnesses that he had given her the 49 acres. Plaintiff also offered to prove by E. R. Wheeler, an attorney at law, that on the day he...