McCormick v. Edwards

• Decision Date: 04 October 1943
• Docket Number: 38322
• Parties: Amos A. McCormick v. Claude A. Edwards and Lelah Fern Edwards, Appellants
• Court: Missouri Supreme Court

174 S.W.2d 826

351 Mo. 1017

Amos A. McCormick v. Claude A. Edwards and Lelah Fern Edwards, Appellants

No. 38322

Supreme Court of Missouri

October 4, 1943

Rehearing Denied November 1, 1943.

Appeal from Jasper Circuit Court; Hon. Wilbur J. Owen Judge.

Affirmed.

William A. Kitchen and D. H. Kemp for appellants.

(1) Plaintiff's petition is fatally defective in that it does not state facts sufficient to constitute a cause of action. Dougherty v. Dougherty, 204 Mo. 228, 102 S.W. 1099; Emerson-Brantingham Imp. Co. v. Rogers, 229 S.W 779; Robinson v. Korns, 250 Mo. 663, 157 S.W. 790. (2) Plaintiff's petition is bottomed on the theory of an alleged mutual mistake. The burden of proof rests on plaintiff to establish his case by clear, cogent and convincing evidence. He must go beyond a mere preponderance of the evidence and remove all reasonable doubt. Courts of equity do not grant the high remedy of reformation upon a probability, or even upon a mere preponderance of the evidence, but only upon a certainty of the error. Stubblefield v. Husband, 341 Mo. 38, 47, 106 S.W.2d 419; Employers' Indemnity Corp. v. Garrett, 327 Mo. 874, 38 S.W.2d 1049; Wilhite v. Wilhite, 284 Mo. 387, 224 S.W. 448; Crouch v. Thompson, 254 Mo. 477, 162 S.W. 149; Moran Bolt & Nut Mfg. Co. v. St. Louis Car Co., 210 Mo. 715, 109 S.W. 47; Dougherty v. Dougherty, 204 Mo. 228, 102 S.W. 1099; Hood v. Owens, 293 S.W. 744; 2 Pomeroy's Equity (4th Ed.), sec. 859; General Refractories Co. v. Sebek, 328 Mo. 1143, 44 S.W.2d 60. (3) Plaintiff's evidence, and the record in the whole case, is wholly insufficient to warrant a reformation of the deed on the ground of alleged mutual mistake. The trial court's judgment and decree clearly are erroneous. Stephens v. Stephens, 183 S.W. 572; Dougherty v. Dougherty, 204 Mo. 228, 102 S.W. 1099; Hood v. Owens, 293 S.W. 774; Wolz v. Venard, 253 Mo. 67, 161 S.W. 760; Benn v. Pritchett, 163 Mo. 560, 63 S.W. 1103. (4) To warrant reformation of a deed, it must be proven that the alleged mistake was made in the preparation of the instrument. The record in this case discloses no such mistake, rendering the evidence insufficient to warrant reformation. Wilhite v. Wilhite, 284 Mo. 387, 224 S.W. 448; Brinkerhoff v. Juden, 255 Mo. 698, 164 S.W. 523; Underwood v. Cave, 176 Mo. 1, 75 S.W. 451; Robinson v. Korns, 250 Mo. 663, 157 S.W. 790. (5) Without question, the scrivener who prepared the deed in this case acted solely under the direction of Edwards; hence the alleged mistake is purely unilateral and one which a court of equity will not reform. Employers' Indemnity Corp. v. Garrett, 327 Mo. 874, 38 S.W.2d 1049; Brinkerhoff v. Juden, 255 Mo. 698, 164 S.W. 523; Hood v. Owens, 293 S.W. 774; Benn v. Pritchett, 163 Mo. 560, 63 S.W. 1103; Stephens v. Stephens, 183 S.W. 572; Brocking v. Straat, 17 Mo.App. 296. (6) The deed, though signed only by Edwards and his wife, when delivered to and accepted by McCormick, and thereafter by him placed of record in the recorder's office, became in law equivalent to McCormick's signature to it as a contract. Thereafter, all prior negotiations and agreements became merged in the deed -- the final agreement -- and the rights of the parties rest solely on the deed. Employers' Indemnity Corp. v. Garrett, 327 Mo. 874, 38 S.W.2d 1049; Poage v. Railroad, 24 Mo.App. 199; Crim v. Crim, 162 Mo. 544, 63 S.W. 489. (7) One who can read and is not prevented from reading a contract before he signs it is bound by its terms and is barred from a rescission or a reformation thereof. Therefore, McCormick's failure, before accepting and recording the deed, to ascertain if it described all the land he says he expected to be conveyed is the result of his own carelessness and negligence for which a court of equity will afford him no relief. The courts will not protect those who do not protect themselves. Employers' Indemnity Corp. v. Garrett, 327 Mo. 874, 38 S.W.2d 1049; Austin v. Brooklyn Cooperage Co., 285 S.W. 1015; Crim v. Crim, 162 Mo. 544, 63 S.W. 489; Ensler v. Mo. Pac. Ry., 324 Mo. 530, 23 S.W.2d 1034; Brennecke v. Lumber Co., 329 Mo. 341, 44 S.W.2d 627; State ex rel. St. Louis Car Co. v. Hughes, 348 Mo. 125, 152 S.W.2d 193; Brinkerhoff v. Juden, 255 Mo. 698, 164 S.W. 523; Miller v. Railway, 162 Mo. 424, 63 S.W. 85. (8) Whatever rights McCormick may possess as against Edwards, he possesses none as against Mrs. Edwards except those expressed in the deed which she signed. The trial court's decree divesting her of title to land which she did not convey or agree to convey, and vesting same in plaintiff, clearly is erroneous. Meier v. Blume, 80 Mo. 179; Atkison v. Henry, 80 Mo. 151; Brinkerhoff v. Juden, 255 Mo. 698, 164 S.W. 523.

James E. Sater for respondent.

(1) The petition states a cause of action. It alleges an agreement between the parties and that the deed did not effectuate the intention of the parties. This is sufficient. Wolz v. Venard, 253 Mo. 67. (2) When the parties agree upon a certain purpose to be accomplished and execute a deed in pursuance thereof and such deed does not effectuate the intention of the parties, a mutual mistake occurred and courts of equity will reform the instrument. Federal Land Bank of St. Louis v. McColgan, 59 S.W.2d 1052, 332 Mo. 860; General Refractories Co. v. Howard, 44 S.W.2d 65, 328 Mo. 1139; Steger v. Seabaugh, 142 S.W.2d 1001, 346 Mo. 728; Hoxsey Hotel Co. v. Farm & Home Savs. & Loan Assn., 163 S.W.2d 766, 349 Mo. 880. (3) The acceptance of the deed is not a bar to the reformation thereof; if such was the law very few instances will be found in which reformation can be had. Bramhall v. Bramhall, 216 S.W. 766; Kidd v. Brewer, 297 S.W. l. c. 962, 317 Mo. 1047; Lanfer v. Smith, 85 S.W.2d 94, 337 Mo. 22; Williamson v. Brown, 195 Mo. l. c. 332; Berry v. Continental Life Ins. Co., 33 S.W. 1016, 224 Mo.App. 1207; Matthews v. French, 194 Mo. l. c. 561; Boeckeler Lumber Co. v. Wahlbrink, 177 S.W. 741, 191 Mo.App. 334; Walker v. Hassler, 240 S.W. l. c. 259.

OPINION

Clark, J.

Suit in equity to reform a deed conveying real estate. The decree was for plaintiff and defendants appeal.

Appellants' assignments of error go to the sufficiency of the petition to state a cause of action and to the sufficiency of the evidence to support the decree in plaintiff's favor.

The petition alleges that on April 27, 1931, plaintiff, by warranty deed, conveyed to defendants as husband and wife the east half of the west half of the northwest quarter and the east half of the northwest quarter of the southwest quarter of a certain described section and took back a deed of trust on said land for the purchase price; that later plaintiff and defendants agreed that, for the sum of one hundred dollars and the cancellation of the indebtedness, defendants would reconvey the land to plaintiff; that on April 14, 1935, defendants executed a deed to plaintiff erroneously describing the property intended and contracted to be conveyed as the east half of the west half of the northwest quarter of the northwest quarter and the east half of the northwest quarter of the southwest quarter, etc. (italics ours); that said deed did not express the mutual intent of the parties as previously agreed, but was executed and delivered by defendants and received by plaintiff under the mutual mistake of fact as to the description, in that said deed was to convey the property first described; that plaintiff has requested and demanded a correct deed and defendants have refused, etc. Then follows a prayer for reformation of the deed.

Defendants did not demur to the petition, but filed an answer which, so far as material here, admits that plaintiff conveyed to them the property first described in his petition and that they executed a deed of trust on the same land to plaintiff to secure the purchase money; then the answer says that plaintiff started foreclosure proceedings and defendants filed a petition in bankruptcy in the Federal Court under the Frazier-Lemke Act; that later defendants proposed to plaintiff that he pay them one hundred dollars and cancel their indebtedness and they would convey to him the land described in the deed which they executed on April 14, 1935; that plaintiff agreed to this, paid them the one hundred dollars, canceled the indebtedness, and received, accepted and recorded their deed; that defendants dismissed their petition in bankruptcy; then the answer prays affirmative relief.

Appellants contend that the petition contains no allegation of mutual mistake in drawing the deed and "that a necessary averment is that the scrivener acted under the direction of both grantor and grantee in drawing the deed; otherwise, the pleading does not charge the mistake to be mutual" citing: Dougherty v. Dougherty, 204 Mo. 228, 102 S.W. 779; Emerson-Brantingham Co. v. Rogers (Mo.), 229 S.W. 779; Robinson v. Korns, 250 Mo. 663, 157 S.W. 790. Those cases and many others hold that in a suit to reform a written instrument on the ground of mistake alone the petition must allege that the mistake was a mutual one. In the Dougherty case the evidence was held insufficient to show a mutual mistake because there was no proof of a preceding agreement between the parties as to what land was to be included in the instrument. It was also said the mistake of the scrivener would not make the mistake a mutual one, because he represented only one of the parties. In Emerson-Brantingham v. Rogers the petition was held defective for failure to allege a preceding agreement, [229 S.W. l. c. 781] for failure to show who made the mistake and for other defects. In Robinson v. Korns, 250 Mo. l. c. 674, the pleading merely charged that the land sold was erroneously described in the deed without alleging that the mistake was a mutual one. All those cases differ from...