Topping v. Jeanette

• Decision Date: 21 May 1902
• Docket Number: 11,718
• Citation: 90 N.W. 911,64 Neb. 834
• Parties: MARY A. TOPPING, APPELLANT, v. JOHN JEANETTE ET AL. APPELLEES
• Court: Nebraska Supreme Court

90 N.W. 911

64 Neb. 834

MARY A. TOPPING, APPELLANT, v. JOHN JEANETTE ET AL. APPELLEES

No. 11,718

Supreme Court of Nebraska

May 21, 1902

APPEAL from the district court for Otoe county. Heard below before JESSEN, J. Reversed.

REVERSED AND REMANDED.

John C Watson, Robert Ryan and John V. Morgan, for appellant.

James W. Eaton and Alva L. Timblin, contra.

POUND C. BARNES and OLDHAM, CC. concur.

OPINION

POUND C.

This is a suit in equity for reformation of a mortgage executed and delivered by plaintiff and her husband to one Eugene Cusson, now deceased, whose executors are defendants. The plaintiff alleges in her petition that the mortgage in question was executed and delivered to said Cusson to secure a debt due the latter from William Topping, her husband; that she signed the note merely as surety for her husband; that at the time the mortgage was executed, her husband was the owner of certain property in Nebraska City, specifically described, which property and none other was intended to be included in the mortgage given to secure payment of said indebtedness; that the conveyancer who drew the mortgage by mistake included therein, in addition to her husband's said property, lot 1, in section 31, township 8, range 15, Otoe county, which was and is her separate property, and was not intended to be mortgaged; that she did not read the mortgage, nor was it read to her before she signed and acknowledged it, but she was informed and supposed that she was signing a mortgage on her husband's property alone; that neither she nor the mortgagee intended that the lien should extend to her own private property; and that her said separate property was included in the mortgage by mutual mistake of the parties. The defendants filed a general denial, and also a plea of the statute of limitations. But the latter is defective in form and without support in evidence, so that we need not consider it. The court found generally for the defendants, and dismissed the suit.

It appears in evidence that William Topping, husband of plaintiff, owned certain property in Nebraska City. Plaintiff was the owner of a farm six or seven miles distant from the city, which was her separate property. Mr. Topping applied to two loan brokers for a loan of $ 500, which he offered to secure by a mortgage upon his Nebraska City property. One of the brokers proposed the loan to the mortgagee, telling him that it would be secured by mortgage upon said city property, and the mortgagee consented to make the loan, and did so. There was a prior mortgage called the "Roddy mortgage" upon both tracts. One of the brokers, in drawing the mortgage, copied the description from the Roddy mortgage, being misled, apparently, by the fact that the city tract was described by metes and bounds, while the farm land bore the unusual designation of "Lot 1," etc. Mr. Topping testifies positively that he did not know his wife's property was included, and that the instrument was not read to her before she signed it. The plaintiff testifies to the same effect; and also that she was told by the notary the instrument was a mortgage on the city property, and that she would not have signed it had she known her land was included. The notary does not dispute this testimony.

We do not think the finding of the lower court can stand. Undoubtedly, in order to justify reformation of a written instrument in any substantial particular, the evidence of mistake must be clear, convincing and satisfactory. Slobodisky v. Phenix Ins. Co. 52 Neb. 395, 72 N.W 483; Home Fire Ins. Co. v. Wood, 50 Neb. 381, 69 N.W. 941; Schrimper v. Chicago, M. & St. P. R. Co . ^[*] 115 Iowa 35, 82 N.W. 916; Potter v. Potter, 27 Ohio St. 84. This statement must not be misunderstood. It is often said that the mistake must be established indubitably or beyond a reasonable doubt. Such is not the rule in this state. A preponderance of the evidence is all that is required in any civil action. The express terms of a written instrument, or the relations of the parties concerned therein, may raise such presumptions that proof of more than ordinary cogency is required to create a preponderance. Until overcome by clear and convincing proof, the terms of the instrument stand as evidence of the intention of the...