Rushton v. Hallett

• Decision Date: 01 September 1892
• Citation: 30 P. 1014,8 Utah 277
• Court: Utah Supreme Court
• Parties: EDWIN RUSHTON AND OTHERS, APPELLANTS, v. MOSES HALLETT AND OTHERS, RESPONDENTS

30 P. 1014

8 Utah 277

EDWIN RUSHTON AND OTHERS, APPELLANTS, v. MOSES HALLETT AND OTHERS, RESPONDENTS

Supreme Court of Utah

September 1, 1892

APPEAL from a judgment of the district court of the first district. The opinion states the facts.

Affirmed.

Messrs Kaighn and Anderson and Messrs. Wilbur and Weeks, for the appellants.

The representation that the second deed embraced no more land than the first deed was actual fraud. Cooley on Torts, 474 Story, Eq. Jur. § 186. The deed must be a free and voluntary act. If, therefore, the grantor is induced by fraud * * * to make a conveyance which he would not otherwise have made, the deed is voidable. Tiedeman on Real Property, § 796; Am. and Eng. Enc. Law, Vol. V. p. 430. Any material fact as to which one party places a known trust and confidence in the other, and by which the confiding party is misled to his injury, will induce a court of chancery to set aside a conveyance. 2 Estee, p. 254; Smith v. Richards, 13 Pet. U.S. 26. If the other party have caused the mistake by misrepresentation, designedly and for the purpose of inducing the contract, it is a fraud and the contract may be avoided. Lawson's R. R. and P., Vol. V. § 2340, quoting cases. In a similar case to this, equity gave relief in case of Read v. Cramer, 2 N. J. Eq. 277, 34 Amer. Dec 205. The cases on this point are also collected in Am. and Eng. Cycl. Law Vol. VIII. p. 636-7. See also Damm v. Moon, 48 Mich. 510, 12 N.W. 679; Pierce v. Roberson, 13 Cal. 125, 127; Pomeroy's Equity Jurisprudence, Vol. II. § 845; Kellmer v. Smith, 77 N.Y. 226. Equity will reform a deed to make it conform to the intention of the parties. Lawson's R. R. and P., Vol. V. § 2306; Evart v. Steele, 11 Ohio 480, 38 Am. Dec. 714.

Messrs. Marshall and Royle, for the respondents.

Respondents admit that the third tract, the street, was not to be conveyed and deny that by the deed the street was conveyed. Outside of the question of "deeding" the ground excluded is so identified there cannot be any mistake as to it. Even if both deeds were represented to be the same, the representation was true. But even if false there was no fraud. 2 Pomeroy's Eq. Jur. §§ 876, 877, 878, 882, 892, 893; 2 Devlin on Deeds, §§ 1020, 1021, 1022; Burbach v Schweinler, 56 Wis. 389.

BLACKBURN, J. ANDERSON, J., and MINER, J., concurred.

OPINION

BLACKBURN, J.:

This suit is brought to reform a deed. Demurrer to amended complaint. Demurrer sustained. Judgment on demurrer, and appeal from the judgment. The complaint is as follows: "Now come said plaintiffs, and, by leave of the court first had and obtained, file this, their second amended complaint, and allege: (1) That at all times hereinafter mentioned, the real estate firm of Thompson, Allen & Steele of Salt Lake City Utah, were the duly authorized and acting agents of defendants, fully empowered to represent, act for, and bind defendants in all matters in and about the transactions and business hereinafter set forth. That on or about the 6th day of February, 1888, in the city of Salt Lake, Utah, plaintiffs made and entered into a contract with defendants, through the defendants' said duly authorized and acting agents, to-wit, said Thompson, Allen & Steele, whereby, for and in consideration of the price, $ 350 per acre, or $ 6,737.50 in all, to be paid to them, plaintiffs agreed to sell and convey, and defendants agreed to purchase and receive, two (2) certain lots or parcels of land, of an aggregate or total area of nineteen and one-fourth (19 1/4) acres, and no more, situated in the city and county of Salt Lake and Territory of Utah. That the first of said lots or parcels of land is described as follows, to-wit: Commencing at a point nine (9) rods west of the northeast corner of block nine (9), plat C, of Salt Lake City survey, and running thence south forty (40) rods; thence west twenty-one (21) rods; thence north forty (40) rods; thence east to place of beginning,--containing five and one-fourth (5 1/4) acres. That, for twenty-five years prior and up to the sale and conveyance hereinafter mentioned to defendants, plaintiffs continuously were the owners, in the possession, and entitled to the possession, of the same. That the second of said lots or parcels of land is described as follows, to-wit: Commencing at a point eight (8) rods west of the southeast corner of block sixteen (16) of said plat C of said Salt Lake City survey, and running thence west to the east bank of the river Jordan; thence, in a northeasterly direction, following the meandering of said river, to a point at the intersection of said river and the center line of said street, twenty-nine and four-tenths (29.4) rods; thence south twenty (20) rods, to place of beginning,-- containing fourteen and one-fourth (14 1/4) acres. That, for twenty-five years prior and up to the hereinafter mentioned sale and conveyance to defendants, plaintiffs continuously were the owners, in the possession, and entitled to the possession, of the same. That said two tracts contain together an area of little over nineteen and one-fourth (19 1/4) acres. (2) That lying between two said pieces or parcels of land is a third tract of land eight (8) rods in width, and about ninety-five (95) rods in length, from east to west, of an area of about five (5) acres, and described as follows, to-wit: Commencing at the north-east corner of said block nine (9), in said plat C, and running thence west about ninety-six (96) rods, to the Jordan river; thence northeasterly, following the meandering of said river, to the north side of said South Seventh street; thence east, about ninety-three (93) rods, to the south-east corner of said lot sixteen (16), in said plat C; thence south eight (8) rods to place of beginning. That said last mentioned tract was at one time surveyed as a continuation of South Seventh street, of said Salt Lake City, but was never used, held, or occupied as a street, or in any manner dedicated to public use, and never sold, conveyed, or transferred by plaintiffs, or any of them, to said Salt Lake City, or to any other person, for or as a street or otherwise. That said plaintiffs for over twenty-five years last passed have continuously been the owners, in the possession, and entitled to the possession, of said last described tract of land. (3) That on or about the day of February, 1888, said defendants caused to be drawn and prepared a deed from plaintiffs to defendants, correctly describing the land embraced in said contract of sale, to-wit, the nineteen...