Koontz v. Owens

• Decision Date: 02 March 1892
• Parties: Sweet, Appellant, v. Owens et al
• Court: Missouri Supreme Court

18 S.W. 928

109 Mo. 1

Sweet, Appellant, v. Owens et al

Supreme Court of Missouri, Second Division

March 2, 1892

Appeal from Jasper Circuit Court. -- Hon. M. G. McGregor, Judge.

Affirmed.

E. O Brown for appellant.

(1) Plaintiff was entitled to have the mistake in the description in the deed corrected. Equity will correct a mistake whether as to fact or law, made by the draftsman of a conveyance, or other instrument, which does not fulfill, or which violates the manifest intentions of the parties to the agreement. Where, by mistake, a deed is not what parties intended, or there is a mistake in it, and the mistake is made out by satisfactory evidence, or is admitted by the other side, or is evident from the nature of the case, or from the rest of the deed, equity will rectify the mistake. So equity will relieve against mistakes of law, in drawing an instrument, so as to make it conform to the plain intentions of the parties. Lawson's Rights, Remedies & Practice, secs. 2306, 2339; Pomeroy's Equity Jurisprudence, secs. 845, 851; Davis v. Briscoe, 81 Mo. 27; Hook, Adm'r, v Craighead, 32 Mo. 405; Evants v. Strode, 11 Ohio 480; Deford v. Mercer, 24 Iowa 118; Leake on Contracts, 319; Chapman v. Allen, 1 Am. Dec. 24; Walker v. Dunlap, 9 Am. Dec. 787; Rogers v. Collier, 33 Am. Dec. 153; Chamberlain v. Thompson, 10 Conn. 243; Smith v. Allen, 1 N.J.Eq. 43; Waterman v. Dutton, 6 Wis. 265; Paine v. Upton, 87 N.Y. 327. (2) The court below committed manifest error in permitting defendants to read, in evidence, over plaintiff's objection, the probate court records showing first and final settlements of the estate of Jeremiah Stout, deceased, and a copy of the will made in 1884. (3) The court erred in excluding the testimony of E. R. Wheeler, as to the declarations made to him by Mr. Stout, in April, 1884, at the time the last will was executed, to the effect that the deceased had just conveyed the "home place," land in controversy, to Elizabeth A., and giving that as a reason why he desired to make another will, omitting any mention of said land in the last will, such evidence being a statement of facts and not communications made in professional confidence. The rule extends only to declarations made to counsel, in order to solicit professional advice. Dikeman v. Arnold, 44 N.W. 407; House v. House, 27 N.W. 858; McCarty's Will, 8 N.Y.S. 578; Bruce v. Osgood, 14 N.E. 563. The question of privileged communication does not arise to exclude his testimony, there can be no privilege where the communication is not made by a client confidentially to obtain advice. Cady v. Walker, 28 N.W. 865.

T. B. Haughawout for respondents.

(1) The circuit court committed no error in refusing to correct the deed as asked in appellant's bill. Before a court of equity will lend its aid to correct a mistake in a deed, the evidence must be clear, conclusive and of such a character as to be equivalent to an admission by the opposing party. 1 Story's Equity Jurisprudence [12 Ed.] sec. 156. (2) This was a voluntary deed, no consideration having passed at the time. And a court of equity will not correct a mistake in a voluntary deed. 2 Story's Equity Jurisprudence, sec. 164. (3) Appellant failed to prove the allegation in the petition that the deed was made from Jeremiah Stout to Elizabeth A., for a valuable consideration. Witness Tower testified that no money passed, while Mrs. Bradbury, one of appellant's witnesses, testified that Elizabeth A. was working for her father (Stout) for the board and clothes of herself and daughter. (4) The records of the probate court were admissible to show that Elizabeth A. had the note for $ 500 given by Stout, deceased, to her, probated, thus showing that she did not let said Stout have the money for the land in question. (5) There can be no question as to the intention of Jeremiah Stout to only convey an undivided one-third interest in the land in question to Elizabeth A., as the deed recites in two different places "the undivided one-third," and furthermore in said deed said Elizabeth A. is absolutely restricted in conveying her interest during the life of said Stout without him joining.

OPINION

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 the third 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, Frances M. Owens and her husband, David D. Owens, Frances 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 Frances 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 eighty acres of land together, and afterwards divided it. In time he became the owner of Hannawalt's share also; and this gave him forty-nine acres. He afterwards bought fifty-five acres adjoining. The land lies some six or seven miles from Carthage, and is reasonably worth $ 50 per acre. His wife died about November 1, 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 fifty-five 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 forty-nine 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 eighty 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 a 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 he willed that his daughter, Sarah K. Bradbury, have $ 250 less than the other heirs, and that his...