Rankin v. Taylor

• Decision Date: 01 July 1927
• Docket Number: 38409
• Citation: 214 N.W. 725,204 Iowa 384
• Parties: G. A. RANKIN, Appellee, v. ARTHUR W. TAYLOR et al., Appellants
• Court: Iowa Supreme Court

214 N.W. 725

204 Iowa 384

G. A. RANKIN, Appellee, v. ARTHUR W. TAYLOR et al., Appellants

No. 38409

Supreme Court of Iowa, Des Moines

July 1, 1927

REHEARING DENIED OCTOBER 1, 1927.

Appeal from Marion District Court.--W. S. COOPER, Judge.

Action in equity to reform a mortgage so as to include the homestead of appellants, and to foreclose the mortgage as reformed. Said relief was granted by the district court. Arthur W Taylor and Mayme Taylor appeal.

Affirmed.

Lappen & Carlson, Faa. O. Ross, Wade P. Clarke, and T. V. Hart, for appellants.

Johnson & Teter, for appellee.

OPINION

KINDIG, J.

This action is in equity. The purpose is two-fold: (1) To reform a mortgage executed by appellants, so as to include all their homestead (a part of which homestead was not described in the mortgage); and (2) to foreclose the mortgage as reformed.

Basis for relief named in the petition is mutual mistake. Appellants admit the execution of the note and mortgage, but deny the right to the correction asked. Reformation and foreclosure were granted by the district court, as prayed.

Four errors relied upon for reversal are, in substance and order, as follows:

I. Appellants are husband and wife. Appellee, Rankin, called as a witness in his behalf appellant Mayme Taylor. This is alleged to be in violation of Section 11260 of the Code of 1924. Said section provides:

"Neither the husband nor wife shall in any case be a witness against the other * * *."

That statute is based on the ground of public policy, the purpose being to keep sacred domestic relationship, and the courts thereunder are not permitted to sanction any doctrine tending to promote marital strife. Such restriction, however, does not extend so far as to prevent a wife who is a joint party in an action with her husband and others from being required to testify, not against her husband, but against her own separate interests, or the independent demands of others, affecting her, or their, individual property or rights involved. That is to say, the scope of the statute is limited to the prevention of one spouse from being a witness against the other.

This pronouncement finds support in the case of Chaslavka v. Mechalek, 124 Iowa 69, 99 N.W. 154, where this court said:

"Where husband and wife are joint parties in an action, the testimony or declarations of one of them are admissible, notwithstanding the provision in Code Section 4606 [Section 11260, Code of 1924] that 'neither the husband nor wife can be, in any case, a witness against the other.'"

See, also, Farmers & Merch. St. Bank v. Moore, 111 Kan. 344 (206 P. 907); Jacobsen v. Andrews, 45 S.D. 490 (189 N.W. 114).

In this case there were many defendants, including appellants. Said Mayme Taylor was not called to give evidence against her husband, but was asked to, and did, testify concerning and against herself and her estate, as distinguished from that of her husband. Mrs. Taylor had the rights of a wife in the property of her husband, and a homestead interest was claimed in the land. Her claims were separate and distinct. Spafford v. Warren, 47 Iowa 47; Adams v. Beale, 19 Iowa 61.

Under Section 10147, Code of 1924, the said mortgage was void unless Mrs. Taylor joined "in the execution of the same joint instrument;" and because of Section 10149 of said Code, appellant Taylor could not remove his wife from said homestead without her consent. In order for the appellee, Rankin, to obtain the reformation, it was necessary for him to prove that it was intended by appellant Mayme Taylor that the omitted property should have been included in the mortgage, and its not being therein was due to mutual mistake. To meet this burden of proof, the wife was called to affirm or disaffirm her own intention concerning the inclusion or omission and the part played by her, if any, in the alleged mutual mistake. Therefore, the wife was a competent witness against herself, notwithstanding the statutory provision to which reference is above made.

II. Appellant Arthur W. Taylor was likewise called as a witness to testify in said cause, and objection is also made that the permitting of him to answer questions was a violation of the same statute. Because of the principle hereinbefore announced, it is clear that he could not make statements against his wife without her consent, but that rule does not prevent him (said Taylor was the owner of said land) from so declaring against himself and his own property and interests. This was what he was called upon to do, and his evidence must be, and is, limited to that object. By virtue of the construction before made, the husband was a competent witness, and his testimony properly received for said purpose.

III. Reformation of a written instrument is to be made only when there is proof that the intention of the parties was to make an agreement such as it is sought to have established, and that said intention was frustrated either by fraud, accident, or mutual mistake. Day v. Dyer, 171 Iowa 437, 152 N.W. 53; Fitch v. Flinn, 198 Iowa 823, 200 N.W. 402; Hubbard Grain Co. v. Western Grain Dealers' Mut. Fire Ins. Co., 199 Iowa 1160, 201 N.W. 568; Rate v. Ryan Bros., 199 Iowa 1050, 203 N.W. 13; Smith v. Godfrey, 200 Iowa 768, 205 N.W. 366.

Evidence required in such instance must be clear, satisfactory, and convincing. Fitch v. Flinn, supra; Hubbard Grain Co. v. Western Grain Dealers Mut. Fire Ins. Co., supra; Rate v. Ryan Bros., supra; Smith v. Godfrey, supra.

Necessity of the occasion has not been met where the evidence is in equipoise, or where there is a mere preponderance in favor of the party claiming reformation. Hubbard Grain Co. v. Western Grain Dealers Mut. Fire Ins. Co., supra.

It is argued by appellants that the burden of proof at this juncture has not been met by appellee, Rankin. So far as the appellant Arthur W. Taylor is concerned, the record in favor of reformation is overwhelming. Proof as to him is beyond reasonable doubt. The historical facts relating to the transaction are: In 1857 there was platted in Marion County a town called Wheeling, containing lots, streets, and alleys. Although the town failed to develop, the plat was never vacated. Accordingly, conveyances of agricultural land are made by lot numbers. Location of streets and lots is not tied in with the government description. Exact portrayal, therefore, is difficult to make.

One J. C. Knox owned a tract of land which included a number of these lots and, in addition thereto, governmental subdivisions. Such land was all used for farm purposes. The total number of acres approximated 116. In 1915, Knox contracted to sell this farm to said Taylor, and a written agreement was executed, under which Taylor received possession and the right to erect a house before the delivery of the deed. Said description in the contract and deed, through oversight, does not include Lots 29, 30, 31, and 32, and another irregular piece or alley in said town. Upon said omitted property the house was located. That description contained in the deed was copied in the mortgage in question. The entire acreage, including that not contained in the mortgage, looked like and was a farm. Buildings necessary and useful for farming operations were constructed upon the omitted and included pieces in such proximity to and relationship with each other as to indicate one property. Knox testified that the house was built on land which appellant Taylor purchased from him, and the whole record shows this to be true.

Reliance by appellants was at all times made upon the Knox deed. Many other facts and circumstances pointing in the same direction are found in the record. Necessity for brevity prevents a detailed statement of them.

With the intention of mortgaging the Knox property, when the correct description was sought, said Taylor referred the scrivener to the record of the said deed under which he had taken possession and built said house. This description was used, but proved to be erroneous. Evidence disclosed the fact that it was not known by the parties to the mortgage in question, at the time of the execution and delivery thereof that said description did not include the omitted parcel. So far as appellee, Rankin, and appellant Taylor...