Robinson v. Korns

• Decision Date: 31 May 1913
• Citation: 157 S.W. 790,250 Mo. 663
• Parties: GERTRUDE ROBINSON et al., Appellants, v. AVERY KORNS and SARAH KORNS
• Court: Missouri Supreme Court

157 S.W. 790

250 Mo. 663

GERTRUDE ROBINSON et al., Appellants, v. AVERY KORNS and SARAH KORNS

Supreme Court of Missouri, First Division

May 31, 1913

Appeal from Buchanan Circuit Court. -- Hon. Lucian J. Eastin, Judge.

Reversed and remanded (with directions).

James Limbird for appellants.

(1) The sole issue tried under cross-bill was one of mistake in making both deeds. "To justify the reforming of an instrument the pleading must allege, and the evidence must show, that a mistake was made, and that said mistake was mutual." Henderson v. Beasley, 137 Mo. 199; Adkins v. Tomlinson, 121 Mo. 487. In this case no mutual mistake of grantors and the grantees is alleged in the cross-bill when the two deeds were made, and no mistake is proven. "A description in a deed will be reformed for mistake only where the evidence is most clear and convincing." Fanning v. Doan, 139 Mo. 410; Sweet v. Owen, 109 Mo. 7. (2) "Courts of equity do not grant the high remedy of reformation upon a probability, nor even upon a mere preponderance of evidence but only on a certainty of error." 1 Story's Eq Jur., secs. 157-161; Pomeroy's Eq. Jur., sec. 859; Tesson v. Ins. Co., 40 Mo. 36; Sweet v Owen, 109 Mo. 9; Worley v. Dryden, 57 Mo. 233; Fanning v. Doan, 139 Mo. 410; Brown v. Gwin, 197 Mo. 499; Benn v. Pritchett, 163 Mo. 571; Zeilda Forsee Inv. Co. v. Ozenberger, 132 Mo.App. 409; Weissenfels v. Cable, 208 Mo. 515; Fidelity & Cas. Co. v. Lumber Co., 133 Mo.App. 637; Redding v. Lumber Co., 127 Mo.App. 625; Bolt and Nut Co. v. Car Co., 210 Mo. 715; Brown v. Givin, 197 Mo. 499; Dougherty v. Dougherty, 204 Mo. 228; Bobb v. Bobb, 7 Mo.App. 504.

Duncan & Utz for respondents.

(1) Equity will reform a deed where a mutual mistake has been made by each party. "If an instrument fails to embody the actual agreement made or transaction determined upon by the parties thereto, reformation is the proper remedy when a case is made out by proper proof." 34 Cyc. 907; Henderson v. Beasley, 137 Mo. 199; Redding v. Lumber Co., 127 Mo.App. 625; Cooper v. Deal, 114 Mo. 527; Parker v. Vanhoozer, 142 Mo. 621. "In short, if a written instrument fails to express the intention which the parties had in making the contract which it purports to contain, equity will grant its relief, affirmative or defensive, although the failure may have resulted from a mistake as to the legal meaning and operation of the terms or language employed in the writing." 2 Pom. Eq. Jur., sec. 845; 1 Story's Eq. Juris. (13 Ed.), sec. 115; Williamson v. Brown, 195 Mo. 332. (2) Degree of proof necessary to justify reformation. Williamson v. Brown, 195 Mo. 332; Parker v. Vanhoozer, 142 Mo. 621; Cooper v. Deal, 114 Mo. 527. (3) Was the mistake mutual? And what is necessary to show it? 34 Cyc. 936-8; Henderson v. Beasley, 137 Mo. 199; Sicher v. Rambousek, 193 Mo. 113. (4) Even though the appellate court may think that the testimony would have warranted a different decree in an equitable suit, some deference is due to the opinion of the trial court before whom the witnesses appeared personally and testified. Bank v. Murray, 88 Mo. 191; Johnson v. Realty Co., 177 Mo. 581; Parker v. Vanhoozer, 142 Mo. 621.

BROWN, C. Blair, C., concurs.

OPINION

BROWN, C.

Ejectment brought March 16, 1910, by Gertrude Robinson against the defendants Korns and wife for possession of a lot in St. Joseph described in the petition as "the east eighty feet of lots five and six, Ashland, as shown by plat thereof; being a subdivision of a part of the northwest quarter of section three, township fifty-seven, range thirty-five in Buchanan county, Missouri." The defendants answered, impleading Samuel J. Turner and wife, who were made parties defendant against their protest. The answer of the Kornses consisted of (1) a general denial, and (2) a plea that prior to September 12, 1907, they sold Mr. Turner a piece of land described as follows:

"Commencing six hundred and sixty feet north of southeast corner of the southwest quarter of the northwest quarter of section three, township fifty-seven, range thirty-five; thence west eighty feet; thence south to the south line of lot six, Ashland; thence east eighty feet along said south line of lot six to the east line of said southwest quarter of the northwest quarter of section three, township fifty-seven, range thirty-five; thence north to the place of beginning."

That on that day they executed to Turner a warranty deed in which the land so sold was described as in the petition. The difference between the land described in the petition and in the answer is that the lot described in the answer lies thirty feet farther east than that described in the petition, so that it includes the east fifty feet of lots five and six, Ashland, and thirty feet lying immediately east of it to the middle of a street appearing upon the Ashland plat. The answer further states that Turner and wife, on March 14, 1910, sold and delivered to plaintiff the possession of the same property sold Turner by the defendants, and executed to plaintiff a deed in which they erroneously described the land as it was described in the deed to them from Korns and wife, and the plaintiff thereupon took possession of the ground that was actually sold and pointed out to her and also insisted on taking possession of the other thirty feet lying immediately west of it, making one hundred and ten feet in all. The prayer of the answer is that the erroneous description in the deed of defendants to Samuel J. Turner and in the deed from Turner and wife to plaintiff be reformed and corrected so as to conform to the true description set forth in the answer, and for general relief. Turner interposed a general demurrer, and when it was overruled answered, putting in issue the affirmative averments of the answer, and the plaintiff replied to the same effect.

It appeared upon the trial that in 1857 one Fred Smith, being the owner of the land included, filed a town plat of Ashland in the recorder's office of Buchanan county. That this in all respects conformed to the act then in force concerning the plats of towns and villages (R.S. 1855, chap. 48) is not questioned. At that time Mr. Smith had a fence extending north and south along the east line of the southwest quarter of the northwest quarter of the section, which, by repairing and replacing has been maintained in the same position ever since. This fence is in the middle of a street appearing on the plat by the name of Chambers avenue. Lots five and six, as platted, front on this street. There is also a travelled road along the north side of lots five and fourteen extending west from Chambers avenue to another platted street called Ashland avenue, which is also open. Chambers avenue has never been improved, and the abutting owners on each side seem to occupy the land of which it consists to the fence, although there is no evidence of valuable improvements having been placed on it since the plat was made, or of any claim of ownership of the ground in the street until this controversy arose. Smith continued to own the land in question, including lots six and thirteen and five and fourteen, until July, 1867, when he conveyed to one Glick, and by mesne conveyances it was acquired by defendant Avery Korns in 1893 from one Strignitz and wife, by warranty deed, using the same description with reference to the lot numbers of the Ashland plat as are used in the deed from Smith to Glick. These four lots constituted a solid body of land something more than two hundred feet north and south and five hundred feet more or less east and west. The deeds of Strignitz to Korns, from Korns to Turner and from Turner to plaintiff, all referred directly to the plat of Ashland for the description of the lots. The two latter deeds describe the land conveyed as follows: "All the east eighty feet of lots five and six, Ashland, as shown by plat thereof, being a subdivision of a part of the northwest quarter of section three, township fifty-seven, range thirty-five."

Of his sale and conveyance of the land to Turner, Mr. Korns testifies that he took Mr. Turner down there and showed him the east end of the ground and they traded on that principle; he was to have the east eighty feet up to the fence. He doesn't think there were any lots mentioned any more than the eighty feet of ground until they came to describe it in the deed. He was then at a loss to describe it and some one said that the east eighty feet of lots so and so would make a fair description of the eighty feet. He presumed he was deeding him the eighty feet of ground lying next to the fence. He attempted to do so. Nothing was said about lots five and six at that time. He then proceeded as follows:

"I heard of this controversy getting up so I went to Mr Limbird's office with Mr. Turner before I sold it -- Mr. Turner came out there and asked me to come and see about the ground. I went down to Mr. Limbird's office; he spoke about this street being dedicated there. I asked him a few questions about it, and he said he didn't know this and didn't know that, but as far as making any agreement with Mr. Limbird or anybody else in regard to that eighty feet west of that road is a positive falsehood; I never agreed under any circumstances to make any other proposition; Mr. Turner and I went away from his office to Mr. Austin's office and we took the abstract and was looking at it; it shows I have 530 feet of ground on the north line. I told him, I said I couldn't see where there was anything different from the eighty feet I showed him and conveyed to him I could do. I says, 'I don't want to do anything unfair,' and I told him I would investigate. I didn't agree to do anything with him, and when he says I agreed to make a deed for eighty feet west of that road he tells a...