Summary
In Cochran v. Burns, 91 N.J. Eq. 7, 107 A. 476, it is held that a complaint was good although no facts or statements as to how the mistake occurred are included except that it was a material mistake and the written agreement was not the intended agreement. If this case decides that the pleading need not negative negligence, it stands almost alone.
Summary of this case from GARNER v. THOMAS ET ALOpinion
No. 46/499.
07-11-1919
COCHRAN et al. v. BURNS.
Bourgeois & Coulomb, of Atlantic City, for the motion. Schimpf, Hanstein & Butler, of Atlantic City, opposed.
Bill by Underwood Cochran and another against John G. Burns. On motion to strike out bill. Motion denied.
Bourgeois & Coulomb, of Atlantic City, for the motion.
Schimpf, Hanstein & Butler, of Atlantic City, opposed.
LEAMING, V. C. Complainants' amended bill is for reformation of a deed of conveyance of real estate made by complainants to defendant. Defendant now moves to strike out the amended bill on the ground "that there are no facts set forth as alleged in said bill which would entitle the complainants to the relief prayed for therein."
The general rule touching reformation of written instruments, as early stated in our federal Supreme Court, cannot be questioned:
"Where an instrument is drawn and executed, which professes, or is intended, to carry into execution an agreement, whether in writing or by parol, previously entered into, but which, by mistake of the draftsman, either as to fact or law, does not fulfill, or which violates the manifest intention of the parties to the agreement, equity will correct the mistake, so as to produce a conformity of the instrument to the agreement." Hunt v. Rhodes, 1 Pet. 1, 13 (7 L. Ed. 27).
The rule, as there stated, is given express approval in Ex'rs Wintermute v. Ex'rs Snyder, 3 N. J. Eq. 489, 500, and is in substance approved by our Court of Errors and Appeals in Preichnecht v. Meyer, 39 N. J. Eq. 551, 560. If complainants' bill clearly sets forth a situation of that nature it must be sustained.
The bill states as a fact that the premises conveyed to defendant were subject to lease, and were occupied by tenants, all of which defendant knew, and that it was the intention of complainants and defendant that the conveyance should be made subject to the leasehold and the interests of tenants, and to that end they placed in the written agreement of sale a provision that "all adjustments such as water, sewer, interest, rents, taxes, etc., on both properties to be adjusted as of day of settlement," that a conveyance was subsequently made by complainants to defendant in pursuance of the agreement, but the deed of conveyance so made was a general warranty deed, and did not mention leasehold interests of tenants; that complainants' deed was made and executed without excepting the leasehold interest of tenants through mutual inadvertence and mistake. The prayer is that the deed be reformed fo conform to the intention of the parties, as contained in the agreement of sale, and for general relief.
In my judgment these averments clearly express the essential facts on which reformation may be decreed. If, in fact, the agreement was to convey subject to the rights of the occupying tenants, and the conveyance which was made failed to express that reservation, and the omission of that reservation from the deed of conveyance occurred through mutual inadvertence and mistake of the parties, complainants are clearly entitled to have the deed contain a reservation of that nature.
It is an approved practice in suits for reformation of instruments to set forth in full in the bill the terms of the contract, if in writing, and also the terms of the instrument which has been executed in fulfillment of the contract, and to also specifically set forth the words sought to be added or expunged. See article on Reformation, etc., in 18 Enc. Pl. & Pr. 744 et seq. But I am unable to find this practice defined as a necessity. I think the sound rule is that stated in Tucker v. Madden, 44 Me. 206:
Although a bill for the reformation of a deed "is not in the accurate and technical form which is desirable," it is sufficient if "the question whether there was a material mistake in the deed is substantially presented, so that it cannot be misapprehended."
I will advise an order denying defendant's motion.