Moss v. Van Wagnen

• Decision Date: 24 January 1930
• Docket Number: No. 48.,48.
• Citation: 249 Mich. 218,228 N.W. 696
• Parties: MOSS v. VAN WAGNEN.
• Court: Michigan Supreme Court

249 Mich. 218

228 N.W. 696

MOSS

v.VAN WAGNEN.

No. 48.

Supreme Court of Michigan.

Jan. 24, 1930.

Appeal from Circuit Court, Tuscola County, in Chancery; Henry H. Smith, Judge.

Bill in equity by Jane G. Moss against Henry Van Wagnen, administrator of the estate of Barrnard A. Moss, deceased. From a decree dismissing bill, plaintiff appeals. Affirmed.

Argued before WIEST, C. J., and FEAD, BUTZEL, NORTH, CLARK, McDONALD, POTTER, and SHARPE, JJ.Otto & Holland, of Saginaw, for appellant.

Roland O. Kern, of Caro, for appellee.

SHARPE, J.

Barnard A. Moss and Jane G. Moss were married and lived together as husband and wife for upwards of 20 years until his death in December, 1927. He had several children by a former wife. She had none. They lived for a time upon a small farm owned by him in Tuscola county, and then moved to the nearby village of Millington, occupying a house owned by the wife until his death. He was a Civil War veteran, and received a pension during these years. In January, 1920, George M. Wells, a brother of the plaintiff, presented her with the title to a tract of land of considerable value in the state of Illinois. In December of that year, a contract was entered into by ‘Jane G. Moss and B. A. Moss, her husband,’ for the sale of this property to John B. Carson for the sum of $38,000. It was provided therein that when $8,000 was paid thereon the vendors should convey the property and accept a mortgage thereon for the balance of $30,000. Such conveyance was made and the mortgage executed on March 1, 1921. This mortgage and the note secured thereby were sent to the plaintiff, and have since been in her possession. Several payments of interest due thereon have been paid to her. Jane G. Moss and B. A. Moss were named as mortgagees and payees therein.

It may be here noted that under the law of the state of Illinois a husband has an inchoate right of dower in any real estate owned by his wife. The scrivener who prepared the contract, deed, and mortgage, testified that it was because of this provision that the husband's name was inserted in these instruments.

On April 18, 1923, Mr. and Mrs. Moss, accompanied by her nephew, who had looked after the Illinois property for her, went to the office of William J. Spears, an attorney at Vassar, where they executed an instrument in writing, prepared by him, in the words and figures following:

‘Memorandum of an Agreement made and entered into this Eighteenth day of April, A. D. 1923, by and between Barnard A. Moss of the one part and Jane G. Moss of the other part, both of Millington, Tuscola County, Michigan.

‘Witnesseth as follows:

‘Whereas, said parties are husband and wife.

‘And whereas, said parties are desirous of settling their property rights and all claims one may have against the other; now therefore for value received it is mutually confessed and agreed that said parties have no account or unsatisfied claims one against the other, and said Barnard A. Moss further disclaims any interest in and to the real estate now owned by said Jane G. Moss and hereby releases to said Jane G. Moss and all interest he may or might have in her said real estate.

‘In Witness Whereof, the parties have set their hands and seals the day and year first above written.

‘Barnard A. Moss,

‘Party of the one part.

‘Jane G. Moss,

‘Party of the other part.’

At the same time a conveyance of a lot owned by the husband in the village of Millington was made by Mr. and Mrs. Moss to Iwill M. Spears, and by her conveyed to Mrs. Moss. The consideration therefor was stated to be $325.

Mr. Moss died in December, 1927. The defendant, Van Wagnen, was duly appointed administrator of his estate on petition of plaintiff. In July, 1928, plaintiff filed the bill of complaint herein, setting up the several conveyances made of the Illinois property, and praying that these instruments be reformed by ‘striking therefrom the name Barnard A. Moss and making the plaintiff the sole grantee named in said mortgage and the sole payee of said note,’ and that she be decreed to be the owner thereof, and that the administrator be required to execute a proper assignment and release of the same to her. At the conclusion of the proofs, the motion of plaintiff's attorneys to amend the bill by setting up the instrument prepared by Mr. Spears, and praying for its reformation by adding thereto the words, ‘and said Barnard A. Moss further disclaims any interest in and to any real estate mortgages or notes owned by said Jane G. Moss, covering Illinois property in which the name of Barnard A. Moss appears,’ was granted.

The trial court filed an opinion in which he reviewed the evidence submitted and the law governing the reformation of contracts, and concluded that plaintiff was not entitled to the relief sought. From the decree dismissing her bill, she appeals.

Parol evidence is sufficient to warrant the reformation of a written instrument.

‘The only test that can be applied to the weight to be given to the proof submitted in civil cases is that of preponderance.’ Hiles v. First National Bank, 237 Mich. 278, 282, 211 N. W. 629, 630.

When it is sought to reform such an instrument on the ground of mutual mistake, ‘the testimony should convince the court that the contract should be reformed in order to carry out the agreement of the parties.’ Kelly v. Israel, 237 Mich. 526, 529, 212 N. W. 88, 89.

‘It is elementary that the burden of proof is strongly upon the party asking reformation of a written instrument on the ground of mistake. The proof of mistake must be clear and convincing. * * * The mistake must be mutual. For relief by reformation in equity, it is essental that the error be made by both parties, and that it be admitted by defendant or distinctly proven.’ Miles v. Shreve, 179 Mich. 671, 679, 146 N. W. 374, 377.

‘Courts do not make contracts for parties, and this truism has given rise to the cautionary rule requiring clear and satisfactory evidence of a mutual mistake before reforming a written instrument.’ Lee State Bank v. McElheny, 227 Mich. 322, 327, 198 N. W. 928, 930.

This is but saying that the proof in such cases ‘will be weighed with much care, and, when considered with any facts or circumstances tending to show its unreliability, must be such as satisfies the mind and conscience of the court. * * *’ Hiles v. First National Bank, s...