Tichenor v. Yankee

• Decision Date: 04 February 1890
• Citation: 89 Ky. 508,12 S.W. 947
• Parties: TICHENOR v. YANKEE.
• Court: Kentucky Court of Appeals

12 S.W. 947

89 Ky. 508

TICHENOR v. YANKEE.

Court of Appeals of Kentucky.

February 4, 1890

Appeal from circuit court, Daviess county.

"To be officially reported."

J. C Johnson and W. T. Ellis, for appellant.

Joe Haycraft, for appellee.

HOLT J.

March 17, 1884, H. C. Yankee and his wife, who is the appellee Sallie E. Yankee, executed a mortgage upon real estate to the appellant, T. C. Tichenor. The husband died in January, 1886 and, more than a year having elapsed without administration upon his estate, this action was brought on August 6, 1887 against his widow and children to enforce the mortgage. No guardian ad litem was appointed for the children, all of whom are infants. This is immaterial, however, as the only relief asked was an enforcement of the mortgage lien, and the land belonged, not to the husband, but to the wife. She defends-- First, upon the ground that the description in the mortgage does not embrace her land; second, that it was not voluntarily executed, and was not acknowledged by her upon privy examination before the clerk, and in the absence of her husband, as the statute requires in case of a conveyance by a feme covert. The deed to Mrs. Yankee conveys a certain boundary of land, describing it, and then excepts from the conveyance a portion of it, which is also described. The draughtsman of the mortgage, in giving the boundary of the land, by mistake copied that of the exclusion in the deed to Mrs. Yankee, so that the land in fact described in the mortgage belonged to a stranger at the time of its execution. The appellant, by an amended petition, set up this evident mistake, and asked that the mortgage be corrected in this respect, and enforced against the land which in fact belonged to Mrs. Yankee.

It is evident all parties understood, when the mortgage was executed, that she was mortgaging her land. The record tends to show that she then owned no other real estate save the land which had been conveyed to her by the deed containing this exclusion. It is true she testifies that she owns another small tract, but she does not say she was such owner when the mortgage was given. But, whether this be so or not, the description in the mortgage is that of the excluded land in the conveyance to her of the land which it is claimed it was intended to mortgage; and this fact is quite persuasive of the claim. Moreover the draughtsman of the mortgage testifies that it was intended to cover the land against which it is now sought to enforce it, and that by mistake the boundary of the land excluded from the conveyance to Mrs. Yankee was inserted. She certainly did not intend to mortgage land that did not belong to her; and, by non-denial in her testimony, virtually admits that it was intended to mortgage the land conveyed to her by the deed containing the exclusion, and that all the parties to the mortgage so understood it at the time. The mistake being clearly made out by evidence entirely satisfactory, it was proper to correct it, and then enforce the mortgage, if to do so be not improper for some other reason. It is not making a new contract for the parties, but merely carrying out the one in fact made. To do so but executes their intention, and corrects a mere error upon the part of the draughtsman.

There is some evidence tending to show that the husband of Mrs Yankee threatened to leave her, and was guilty of improper conduct, by way of inducing her to execute the mortgage; but the appellant had no notice of it, and was not a party to it in any manner. He was not present when the mortgage was executed; and it is not claimed there was any fraud, or improper conduct of any character, upon his part. If she did not voluntarily execute it, she should have said so when she acknowledged it. Our statute provides that the officer taking the acknowledgment of a...