Smith v. Butler

• Citation: 11 Or. 46,4 P. 517
• Parties: SMITH v. BUTLER.
• Decision Date: 01 March 1884
• Court: Supreme Court of Oregon

4 P. 517

11 Or. 46

SMITH v. BUTLER.

Supreme Court of Oregon

March, 1884

Appeal from Polk county. The facts are stated in the opinion.

Daly & Butler, for appellant.

J.W Rayburn, for respondent.

LORD J.

This was a suit to correct a mistake in a decree of partition. The mistake originated in the description of a division line in the report of referees, and, not being noticed at the time was confirmed by the court without objection and incorporated in its decree. The complaint is subject to some criticism for much redundant matter, but no pleading was resorted to to expunge these objectionable features in the court below. It does, however, allege facts sufficient to the mistake, and in what it consisted, and prays the equitable interposition of the court for the purpose of correcting that mistake, and to make the division line conform, in fact, to the division line intended and supposed to have been reported by the referees to the court for its action and judgment in the partition suit. In the consideration of this case we are not confronted with any facts or evidence which involves the question of notice or the rights of innocent purchasers; it is presented on the bare issue of mistake. When denuded of all superfluous matter, the mistake is precisely alleged in the complaint but before a court of equity is authorized to correct mistakes or reform written instruments, the mistakes, like fraud, constitute one of the exceptions to the admission of parol evidence to modify or contradict written instruments (Gump's Appeal, 65 Pa.St. 478;) but courts of equity have adopted a rigid rule in respect to such evidence, and require the most clear and convincing proofs to establish mistake or reform written instruments. 1 Story, Eq.Jur. § 157; 2 Pom.Eq.Jur. § 858, and cases cited. Mere preponderance of evidence is not sufficient. Stockbridge Iron Co. v. Hudson R. Iron Co. 102 Mass. 45. But the mistake must be clearly made out by satisfactory proofs. Nevins v. Dunlap, 33 N.Y. 680. So, too, equity will grant relief in cases of mistakes in judgments, decrees, and other matter of record when the mistake is not judicial and there is no other means of obtaining relief. Loss v. Obry, 22 N.J.Eq. 55; 1 Story, Eq.Jur. § 166; 2 Pom.Eq.Jur. § 871, and cases cited in note.

A case is, therefore, presented by this suit of which courts of equity will take jurisdiction, and the only question for us now to consider is...