Trustees First Christian Church v. Macht

• Decision Date: 22 March 1929
• Parties: Trustees of the First Christian Church of Fort Thomas v. Macht.
• Court: United States State Supreme Court — District of Kentucky

Page 628

228 Ky. 628

Trustees of the First Christian Church of Fort Thomas v. Macht.

Court of Appeals of Kentucky.

Decided March 22, 1929.

1. Reformation of Instruments. — Clear and convincing proof is required to authorize reformation of a duly executed writing.

2. Reformation of Instruments. — In equity action to reform a deed so as to exclude therefrom a narrow strip claimed to have been included by mutual mistake, evidence held sufficiently clear and convincing to authorize reformation.

3. Appeal and Error. — Where clerk, in making out transcript of record for appeal, failed to comply with Court of Appeals rule 3, subsec. 9, requiring indexing of transcripts, in that index prepared only cited pages where depositions commenced, regardless of number of persons whose depositions were taken he was not entitled to collect $10 of amount of his costs for making transcript.

Appeal from Campbell Circuit Court.

WILLIAM U. WARREN for appellants.

WILLIAM A. BURKAMP and L.S. SHEPLER for appellee.

OPINION OF THE COURT BY JUDGE THOMAS.

Affirming.

Prior to May 27, 1926, appellee and plaintiff below, John Macht, owned lots Nos. 1, 2, 3, and 5 in the First subdivision of Fort Thomas Park in Ft. Thomas, Ky. On that day he conveyed to appellants and defendants below, as trustees of the First Christian Church of Ft. Thomas, Ky., lot No. 1, which was so referred to in the description contained in the deed, and which description also said: "Said lot fronts 50.98 feet on the westerly line of the Alexandria Turnpike, and extends back westwardly, between parallel lines, ____ feet on the northerly line, and ____ feet on the southerly line, and has a width 50 feet in the rear."

Plaintiff filed this equity action in the Campbell circuit court to reform the deed so as to exclude therefrom a narrow strip across the west end of the lot that he says was by mutual mistake omitted from the description and was not intended to be conveyed, but which was conveyed under the general designation in the deed of "lot No. 1" of the designated subdivision. Defendants denied the alleged mistake, and in every way possible resisted the reformation sought by plaintiff; but the court on final submission reformed the deed as prayed for in the petition, and to reverse that judgment defendants prosecute this appeal.

Plaintiff had a residence building in which he resided on one of the other lots, which were contiguous, and had constructed a barn with a concrete basement and stone foundation, a small portion of which extended over on to the west end of lot No. 1. Some days prior to the above date of the execution of the deed the Rev. Robert Dickerson Harding began negotiations with plaintiff for the purchase of a lot upon which to construct a church building for a congregation that he proposed to organize, and both parties went upon the lot, but they differ as to what occurred at that time. Plaintiff testified that the length of the lot from east to west, as shown upon the recorded plat in the county court clerk's office, was greater than its actual length upon the ground, and that he on that occasion not only so informed Rev. Harding, but that he also stated to him that the ground proposed to be conveyed was the entire width of the lot, but did not include its rear portion that was occupied by the barn, and that he would measure on the ground the length of the lot he offered to convey, which he later did. The Rev. Harding admits going upon the ground with plaintiff, but testified that nothing was said by the latter to indicate that any exclusions were to be made from the west end of lot No. 1, but that, on the contrary, the entire lot was to be conveyed. After that, plaintiff testified that he drove his stakes so as to include the entire width of the lot and to extend back from the front on its north line 155 feet and its south line 164.35 feet. The lot fronted Alexandria highway on the east, and which runs in a diagonal course so as to make its south line longer than its north line.

On the Sunday following, two of the defendant trustees, with the Rev. Harding, again went with plaintiff on the lot, and the latter testified to about the same conversation previously had with the Rev. Harding, but the trustees testified that there was no mention of any driven stakes at that time, nor did they see any. At the appointed time for the preparation of the deed by the attorney selected by defendants, plaintiff appeared with his pencil outline showing the dimensions he proposed to convey, as above indicated, and which is in accord with his contentions in this action, and exhibited it to the parties present, including the attorney. The deed was then prepared, leaving blank spaces for the insertion of the lateral lines of the lot after they should be accurately ascertained by a surveyor to be selected by the Rev. Harding, which he did on that same day, and the selected surveyor went upon the lot and found thereon the stakes hereinbefore referred to, and which, as located, excluded from the lot that portion on its west end now contended for by plaintiff as having been conveyed through mistake. The measured distances by the surveyor were 154.66 feet for the north line and 166.04 feet for the south line, and which excludes from the recorded plat of the lot a small part of its west end now...