Stephens v. Stephens

• Decision Date: 29 February 1916
• Docket Number: No. 17728.,17728.
• Citation: 183 S.W. 572
• Parties: STEPHENS et al. v. STEPHENS et al.
• Court: Missouri Supreme Court

183 S.W. 572

STEPHENS et al. v. STEPHENS et al.

No. 17728.

Supreme Court of Missouri, Division No. 1.

February 29, 1916.

Appeal from Circuit Court, Lincoln County; B. H. Dyer, Judge.

Suit by Evenel Stephens and others against Roy Stephens and others to reform a deed. From a judgment for defendants, plaintiffs appeal. Affirmed.

R. H. Norton and Avery, Young, Dudley & Killam, all of Troy, for appellants. Robert L. Sutton and Grover C. Huston, both of Troy, for respondents.

BOND, J.

I. This is a suit in equity to reform a deed given by Obed Stephens and his wife, Elizabeth, to the defendant, Roy Stephens, his son, conveying to him the south portion of his farm in Lincoln county, Mo. Obed Stephens died in 1912 and was survived by his wife and seven children, all of whom are parties either plaintiffs or defendants to this suit. Previous to his death, he had owned a farm in Lincoln county upon which he had resided with his family for about 35 years. In the latter part of the year 1910, Obed Stephens entered into an agreement with his son Roy, the defendant, whereby he agreed to sell him about 80 acres of land located in the south part of his farm, in consideration of which Roy was to give him his note for $2,000 secured by a deed of trust on the land. In furtherance of this agreement, Obed Stephens had Edward Teague, cashier of the Silex Savings Bank and a notary, draw up a deed to the property to be conveyed, who testified that Stephens told him to take the point where the old Silex and Auburn road crossed his east line and to run a line from that point; the defendant Roy to have all the property which lay south of that line. The Silex and Auburn road ran diagonally across the farm from northeast to southwest. The entire farm contained 183.52 acres. The plaintiffs claim that the father intended to convey only the land south of the road or the road and a creek, and that this was to act as the northern boundary instead of the line drawn by Teague beginning at the intersection of the road and the east boundary line and running due west. As the deed stands, it calls for about 17 or 18 acres north of the road, which land it is claimed by the plaintiffs neither party intended should pass under this deed, wherefore the plaintiffs pray this court to alter the instrument so as to make the Silex and Auburn road the northern boundary of defendants' property. The case was tried in the circuit court of Lincoln county, which found for the defendants, from which judgment the plaintiffs have duly appealed to this court.

II. This appeal is determined by the application of certain equitable principles to the facts.

Where the real contract actually made by the parties to a deed is not expressed in the instrument by mutual mistake, equity will reform the deed and write in it by decree the contract which it should have contained, but only upon evidence so clear and convincing as to leave no reasonable doubt either of the mistake or its mutuality. Nothing less will justify the alteration of a written conveyance. In such cases, if the mistake was caused by the act of the draughtsman, it must further be established that he was the agent of both parties; otherwise there would be no proof of its mutuality, and that indispensable fact would have to be shown by other evidence. Robinson v. Korns, 250 Mo. loc. cit. 675, 157 S. W. 790; Dougherty v. Dougherty, 204 Mo. loc. cit. 238 et seq., 102 S. W. 1099.

In the case at bar the scrivener was not the agent of both parties. He was the agent of the grantor only, and wrote both deeds by his directions without the aid or presence of the defendant grantee. It follows that resort must be had to evidence aliunde to prove, if possible, that the deed from the father to the son discloses a mutual mistake of the terms of a prior contract agreed upon by them and upon which the deed was founded.

The father, owing to his death, could not testify. In substance, the son Roy stated that, when his brother spoke to him about the land he had bought from his father, "I told him my father gave me a due west line, but he did not want it surveyed until his death"; that his father wanted to use the land and would make an allowance thereof on the $2,000 note given for the purchase money. He also denied the testimony of his brother to the effect that after his death he admitted to them that he bought the land south of the road or that the road...