Perkins v. Herring

• Decision Date: 10 March 1910
• Citation: 110 Va. 822,67 S.E. 515
• Parties: PERKINS v. HERRING.
• Court: Virginia Supreme Court

67 S.E. 515

110 Va. 822

PERKINS

v.HERRING.

Supreme Court of Appeals of Virginia.

March 10, 1910.

1. Reformation of Instruments (§ 45^*)— Evidence—Weight and Sufficiency.

To warrant a reformation of a contract on the ground of mistake of fact, the evidence must be clear, convincing, and satisfactory.

[Ed. Note.—For other cases, see Reformation of Instruments, Cent. Dig. § 158; Dec. Dig. § 45.*]

2. Reformation of Instruments (§ 45*) — Evidence—Sufficiency.

In an action for specific performance of a contract to convey land, evidence held insufficient to sustain defendant's claim for a reformation of the contract on the ground of mistake as to the boundaries of the land.

[Ed. Note.—For other cases, see Reformation of Instruments, Cent. Dig. § 159; Dec. Dig. § 45.*]

Appeal from Circuit Court, Louisa County.

Action by Otis Perkins against G. E. Herring. From a judgment for defendant, plaintiff appeals. Reversed, and judgment rendered for plaintiff.

Jas. Lee Shelton and Wm. E. Bibb, for appellant.

F. W. Simms, for appellee.

WHITTLE, J. This suit was brought by the appellant to compel specific performance of the following contract:

"Be it known to all men that G. E. Herring of the first part and Otis Perkins of the second part enter into agreement, to wit, G. E. Herring * * * agrees to sell to Otis Perkins the Cherry Hill house tract of land, containing 163 acres, for the sum of $1,250, and to hold the same until 1st of September, 1907, when Otis will take possession and make the first payment, and Otis Perkins * * * agrees to take the said tract and as evidence of his good faith in this contract he has paid to said G. E. Herring $50, and will pay $50 more soon as evidence. Given under our hands and seal this 8th day of November, 1906. G. E. Herring. [Seal.] "Otis Perkins. [Seal.]"

The bill alleges an offer to pay and readiness to pay the residue of the purchase money.

The appellee, Herring, held the land in controversy, and an adjoining tract containing 104 acres, in his own right, and as executor and trustee under the will of Oscar Herring, deceased, by virtue of two deeds from a special commissioner, dated, respectively, September 26, 1887, and March 21, 1891. Both deeds refer to and are based upon the Hart survey and map, which gives the metes and bounds, and shows the relative position of each tract. These lands were formerly owned by Oscar Herring, and were known as the "Cherry Hill" farm. On September 11, 1906, by contract in parol, the appellee agreed to sell the 104 acres of land to T. L. Jones for $700. The only written memorandum of the latter sale is found in the following receipt:

"Received Sept. 11, 1906, of Thos. L. Jones fifty dollars on the purchase price of 104 acres of land of the 'Cherry Hill' farm. This land lies west of the road leading from R. E. Perkins toward Apple Grove.

"G. E. Herring."

The road referred to is known as the "Road to Frederick Hall."

Herring resisted the demand for specific performance on the ground that at the dates of his contracts with Jones and the plaintiff he was laboring under the mistaken impression that the "Road to Frederick Hall" was the true dividing line between the two farms, and that he had contracted with both parties upon that theory, but had since ascertained that 21.8 acres of the 163-acre tract lay west of that road. He, therefore, insisted that his agreement with the plaintiff ought to be reformed in accordance with the understanding of the parties, and that Perkins should be put upon terms and required either to accept the portion of the 163-acre tract lying on the east side of the "Road to Frederick Hall, " with an abatement pro tanto of the purchase price for the deficiency inacreage, or else that his bill should be dismissed.

The plaintiff controverted the defendant's pretension; but the circuit court adopted that theory and decreed accordingly.

In that aspect of the case, it will he observed that the defendant is asking reformation of the preliminary agreement for the sale of the 163-acre tract on the ground of a mistake of fact with respect to its western boundary. The burden of proof consequently rests upon the defendant to establish the alleged mistake.

In 34 Cyc. 984, discussing the general doctrine of the weight and sufficiency of evidence to entitle the plaintiff to relief In a suit for the reformation of a written instrument on the ground of mistake, it is said: "The courts are not entirely uniform as to what amount of evidence is sufficient to warrant reformation. In the language of some cases, 'a preponderance of the evidence is all that is required.' * * * But many cases have held that a mere...