Opinion
(Filed 21 May, 1941.)
1. Reformation of Instruments § 3 — Evidence held insufficient to support finding that description was inserted in deed through mutual mistake.
Evidence that the grantee desired to purchase the particular lot which was described in her deed, and that, at the time she offered to purchase, the parties thought that grantors owned the lot, without evidence that the parties had gone on the premises or that they had mistakenly inserted the description of the lot intended to be conveyed, is insufficient to support a finding that the parties intended to describe another lot in the subdivision to which grantors had title, and grantors are not entitled to reformation for mutual mistake of the parties.
2. Courts § 2a —
Where the only exception is to that part of the judgment of the municipal court relating to the allowance of the defendants' counterclaim, the Superior Court upon its determination that judgment on the counterclaim was erroneously allowed, is limited to remanding the case to the municipal court for proceedings therein in accordance with the judgment of the Superior Court.
APPEAL by defendants from Pless, J., at January Term, 1941, of GUILFORD. Modified and affirmed.
Julian C. Franklin for plaintiff, appellee.
Walser Wright for defendants, appellants.
Plaintiff instituted her action in the municipal court of the city of High Point for the recovery of $350 which she alleged she paid defendants for the conveyance of a city lot, designated as No. 198 and described in the complaint, to which lot she alleged defendants had no title. The defendants admitted they did not own lot No. 198 described in the deed, but set up, as an affirmative defense or counterclaim, that there was a mutual mistake in the description in the deed, and that the plaintiff intended to purchase and the defendants intended to convey lot No. 196 in the same division, which lot the defendants did own, and asked for reformation of the deed in accord with that intention.
In the municipal court jury trial was waived, and it was agreed that the judge should find the facts. From the evidence offered the court found that there was a mutual mistake in the deed, and that the parties intended that lot No. 196 be described instead of lot No. 198, and thereupon overruled plaintiff's motion to dismiss the counterclaim, and ordered the deed reformed as prayed. To this finding and judgment the plaintiff noted exception and appealed to the Superior Court.
In the Superior Court it was adjudged that there was no evidence to support the finding that the description of the property in the deed as lot No. 198 was inserted by mutual mistake, or that the parties intended to describe lot No. 196 instead of No. 198 as expressed in the deed.
The appeal of the defendants brings this ruling of the court to us for review, and requires an examination of the testimony offered in the municipal court to determine whether there was any evidence to support the finding that there was a mutual mistake in the deed as asserted in defendants' counterclaim. Upon such examination we are led to the conclusion that the ruling in the Superior Court was correct. We do not think there was evidence to support the finding that there was a mutual mistake in the description of the lot conveyed so as to entitle the defendants to the equity of reformation. All the evidence is to the effect that the plaintiff wished to purchase lot No. 198 and not lot No. 196, and that she had no intention of purchasing lot No. 196. There is no evidence that the parties had gone upon the premises, or that they had mistakenly inserted a different description of the lot intended to be conveyed. At the time plaintiff offered to purchase lot No. 198 it was erroneously supposed that defendants owned that lot. There was no meeting of the minds of the parties as to the purchase of lot No. 196, and plaintiff did not agree to purchase that lot, and does not wish to do so. The court cannot, under the guise of reformation, enforce a contract which the parties themselves have not made.
"A person who seeks to rectify a deed on the ground of mistake must establish, in the clearest and most satisfactory manner, that the alleged intention to which he desires it to be comformable continued concurrently in the minds of all parties down to the time of its execution." Long v. Guaranty Co., 178 N.C. 503, 101 S.E. 11; Sills v. Ford, 171 N.C. 733, 88 S.E. 636.
As the exception to the judgment of the municipal court related only to the defendants' counterclaim, the judgment of the Superior Court should have been limited to remanding the case to the municipal court for proceeding in that court in accord with the judgment of the Superior Court. Bernhardt v. Brown, 118 N.C. 701, 24 S.E. 527.
Except as thus modified, the judgment of the Superior Court is
Affirmed.