Michel v. Tinsley

• Decision Date: 30 April 1879
• Citation: 69 Mo. 442
• Parties: MICHEL et al., Appellants, v. TINSLEY.
• Court: Missouri Supreme Court

69 Mo. 442

MICHEL et al., Appellants,

v.TINSLEY.

Supreme Court of Missouri.

April Term, 1879.

Appeal from New Madrid Circuit Court.--HON. D. L. HAWKINS, Judge.

Waters & Winslow with S. T. Davis for appellants.

The court below erred in reforming the trustee's deea from Hunter to Tinsley. It had no seal, and no words of conveyance. It was in fact a simple memorandum of the sale. As a contract to convey or a conveyance, it had no validity, and was not a proper instrument for reformation. 1. The mistake complained of was the result of pure carelessness, and against such mistakes equity affords no relief. Graham v. Berryman, 19 N. J. Eq. 29; Dillett v. Kemble, 25 N. J. Eq. 66; Voorhis v. Murphy, 26 N. J. Eq. 434. 2. The deed is not such an instrument as equity will reform. It was made in execution of a naked legal power. There was and could have been, no pre-existing contract to be reformed, as the trustee could only follow strictly the terms of the deed appointing him. The trustee is the custodian of a naked legal power; and the particular mistakes complained of here consist of the omission of certain statutory requisites of a valid deed. Equity will not aid the defective execution of mere legal powers, or where the policy of legislation supervenes. Besides, conflicting equities, growing out of the transaction, have become involved, and equity cannot consistently interfere. 1 Story Eq. Jur., (12 Ed.) §§ 95, 96, 176, 178; Moreau v. Detchmendy, 18 Mo. 522; Speck v. Wohlien, 22 Mo. 310; Moreau v. Branham, 27 Mo. 351; Schwickerath v. Cooksey, 53 Mo. 75; Shroyer v. Nickell, 55 Mo. 264; Houx v. Bates Co., 61 Mo. 391; Bright v. Boyd, 1 Story (U. S.) 478; Gibb v. Rose, 40 Md. 387; Dickinson v. Glenney, 27 Conn. 104. 3. As to the granting words, whether they shall be words of quit-claim or warranty, or to what extent they shall go, nothing short of the kind and quantity of evidence required to establish trusts, mortgages, and the like, by parol, will be sufficient. There is simply no evidence in the record on this subject. To secure such relief, the contract must be certain, mutual, lawful, untainted with fraud, and in every way capable of performance; and the evidence must be clear, convincing, unequivocal, to show the existence of the mistake and its precise character; which implies the ability to show the exact language the parties intended to use. Every presumption is in favor of the instrument as it is; and the mere fact that something is necessary to make it effectual will not justify its reformation without evidence. State ex rel. v. Frank, 51 Mo. 98; Schwickerath v. Cooksey, 53 Mo. 75; Mastin v. Halley, 61 Mo. 196. For aught that appears in the record, Hunter may have used the identical words he intended, and may have been mistaken as to their legal effect only. If so, the court had no power to correct it. Moorman v. Collier, 32 Iowa 138; Jacobs v. Morange, 47 N. Y. 57. The right to have the mistake corrected was barred by the statute of limitations. The mistake here, if any, was palpable on the face of the deed, and the natural presumption is that it was discovered within a reasonable time. Hunter v. Hunter, 50 Mo. 445.

Hockaday & Silver and Louis Houck for respondents.

1. The power contained in the deed was not a statutory one, but was the private power of the grantor in the deed of trust, and, hence, its defective execution could be corrected. Beatie v. Butler, 21 Mo. 319; 2 Perry on Trusts, § 602 g. 2. Nor did the statute of limitations bar the correction. Varick v. Edwards, 11 Paige 290; Bartlett v. Judd, 23 Barb. 263; Love v. Watkins, 40 Cal. 547. The evidence of mistake was sufficient to authorize the correction. The omission of the seal by mistake is apparent from the words “under my hand and seal,” in the conclusion of the deed. Mastin v. Halley, 61 Mo. 199; Wadsworth v. Wendell, 5 John. Ch. 224. So the omission of operative words of grant is equally apparent from the clause of covenant and warranty.

NAPTON, J.

This is a proceeding in equity to establish the title of plaintiffs to eight or nine hundred acres of land in Pemiscot county, alleged to have been divested from plaintiffs' ancestor by fraud and breach of trust. The suit was instituted on the 10th day of August, 1869, the pleadings and testimony are voluminous, most of the transactions upon which the finding and decree of the court are based, occurred years ago, extending from 1837 down to within a year or two before the institution of the suit, and it is, therefore, necessary to determine whether the finding of the court upon which the bill was dismissed, and upon which, what is here called the cross-bill was sustained, was justified by the testimony, and whether the decree was authorized by the finding. It would not subserve any useful purpose, however, to give a detailed statement of the evidence in the case. There are some facts undisputed, and these need only to be rehearsed; there are others about which the evidence is contradictory, and concerning them we will merely state the character of the evidence adduced on either side, and the inferences to be drawn from such testimony, taken in connection with undisputed facts.

1. AFFIRMEDON THE FACTS.

It appears from the record that Arthur F. Eastwood, one of the sons of James Eastwood, entered part of the land in controversy at the Jackson land office, in 1837, in his own name, and secured the patent from the Government in due time. He was then a minor about eighteen years old. He was a brother of William J. Eastwood, who was younger than he, in whose name the remaining forty acres of the land was entered. The plaintiffs were the three children of Arthur F. Eastwood and his heirs and the heirs of his brother, William J., both of whom were dead long before the commencement of the suit in 1869, Arthur having died in 1850, and the exact date of the death of his brother, which occurred afterwards, not appearing from the record. It appears that in 1844, and previous to that time, and probably before the removal of the father, James Eastwood, from Tennessee, over the river into that part of New Madrid now called Pemiscot, the old man was embarrassed by debts, though holding a large quantity of land. However that may be, he and his two sons, Arthur and William, being in that year indebted to Robert G. Watson, and Waters & Allen, of New Madrid, to the amount of about $3,000, the father and the two sons, with their wives, executed a deed of trust to W. W. Hunter, conveying the land now in dispute, and a variety of personal property, consisting mostly of stock and some household furniture, and some slaves, to secure this indebtedness. These lands, though of inexhaustible fertility, and above the reach of high water, and heavily timbered, were not probably at that day (1844) worth in the market over $3 or $4 an acre. To make them valuable the timber had to be removed. The trustee was authorized by this deed, in the event that the indebtedness recited in it was not paid on January 1st, 1847, to advertise by nine hand-bills put up in the most public places in said county, sufficient of said property to pay said debts and costs, and he was required to sell said property to the highest bidder, unless otherwise agreed upon by the parties on the day of sale.

There is considerable diversity of opinion in the statements of witnesses as to what occurred at the sale, which took place in 1852, and after the death of Arthur F., one of the grantors. The trustee, Hunter, was dead before the trial, and so was the father, James Eastwood, and both the sons. His two sons-in-law, Nall and Tinsley, were, however, examined, and they were obviously the most reliable witnesses, as they had every opportunity of knowing the facts, and so far as can be perceived, no motive to misrepresent them. From their testimony, as well as that of Mrs. Eastwood, the wife of James Eastwood, and the intrinsic probabilities of the case, it appears clear that the old man had advanced the money to enter these lands, and was the...