Opinion
No. 42936.
March 9, 1953.
APPEAL FROM THE CIRCUIT COURT, JACKSON COUNTY, JOE W. McQUEEN, J.
Trusty, Pugh Green, Kansas City, for appellants.
Louis W. Krings, Kansas City, for respondents.
The grantors, George A. (R. in the deed involved) Blevins and Elsie M. Blevins, instituted this suit against the grantees, Clarence V. Thompson and Berthe D. Thompson, husband and wife, to reform a warranty deed on the ground of mutual mistake, claiming the metes and bounds description should not have included the south 228.25 feet of Lot 7, hereinafter mentioned. In 1950, prior to the execution of the deed, Mrs. Blevins obtained a divorce and thereafter married a Mr. Niebaum. She is referred to herein as Mrs. Blevins. The grantees filed a cross-suit to remove as a cloud on their title a second deed, designated a deed of correction, made without the knowledge or consent of the grantees and filed of record but never delivered. The decree was for the grantors on their petition and for the grantees on their cross-suit. The grantees appealed, assigning that plaintiffs' evidence and petition were insufficient; that, under the evidence, the grantees had purchased the land conveyed, and that gross and inexcusable negligence of the grantors barred their right to any relief as a matter of law.
In 1943 Mr. and Mrs. Blevins acquired 7 1/2 acres of land in rural Jackson county, Missouri. Mr. Blevins stated 25 feet on the south of the tract for 66th street and 25 feet on the west for Palmer avenue, 50 foot streets, were taken when the streets were put through. The land is described as Lots 6, 7 and 8 in Meadow Lawn, a subdivision in Jackson county, Missouri. The lots are numbered from the east to the west, are approximately 633 feet north and south, and border on 66th street approximately 165, 158 and 140 feet, respectively.
Mr. and Mrs. Blevins lived in a 4 room house on the south part of Lot 6. They reduced their acreage to approximately 3 1/2 acres, giving consideration to the land taken for street purposes, by sales of strips off the north end and the south 228.25 feet of Lot 8 in the southwest corner of the tract. This was the only land they ever owned. They had an eighth grade educations and left the preparation of the descriptions or papers to the real estate agents.
About 1948, Elmer Nichols, Mrs. Blevins' brother, orally agreed to purchase the south 228.25 feet of Lot 7, about 3/4ths of an acre, for a home for Mrs. Nichols, Mrs. Blevins' mother. Some money was paid on the purchase, but no contract or deed was over executed. Mrs. Blevins' two brothers and Mr. Blevins then built a 2-room house with half-bath, electricity and water for Mrs. Nichols. The cost of the materials was between $1,400 and $1,500. The controversy is over this 228.25 feet.
Mr. and Mrs. Blevins, on April 25, 1950, borrowed $2,300 from the North American Savings and Loan Association and executed their deed of trust on 2 1/2 acres of the land to secure the loan. Mr. Blevins had the association correct the first draft of the deed of trust so as to exclude the portion of Lot 7 here in controversy, drawing a line at that time on the plat designating the land to be excluded.
Mr. Edward J. Wenne, in response to a telephone call to the Davis Realty Company, went to the Blevins home and Mr. Blevins listed the 4-room house and 2 1/2 acres of land for sale. The Davis Realty Company advertised the property in the Kansas City Star between a August 20 and 31, 1950. Each advertisement, so far as material, read: "66th-Palmer. 2 1/2 acres. 2 bedroom bungalow. Something nice. $5500."
Mr. and Mrs. Thompson read the advertisement and arranged through Mr. Wenne to inspect the property, Mr. Wenne informing them it was the third house east from 66th and Palmer. Proceeding east from said intersection there is a house on the south part of Lot 8, Mrs. Nichols' house on Lot 7, and the Blevins house on Lot 6. Mr. and Mrs. Thompson went to the third house and found Mr. Blevins at home. Mr. Wenne arrived a short time later.
Mr. Blevins testified to the following effect: Mr. and Mrs. Thompson looked over the Blevins house. They went outside and he pointed out the boundaries of the property offered for sale. He showed Mr. Wenne a survey of Lots 6, 7 and 8, but would not swear he did or did not show it to Mr. Thompson. Mrs. Nichols' house is about 40 feet west of his west line. There is a short (15 to 20 feet) gravel driveway between the two houses and, part of the way, a fence, approximately on the lot line. He showed the Thompsons the posts that were approximately the line. The land on which Mrs. Nichols lived was not within the boundaries he pointed out and was not sold. In response to an inquiry by Mr. Thompson he told him there was approximately a frontage of 165 feet on 66th street (the frontage of Lot 6). He told them they would have 2 1/2 acres. He believes it is that amount, especially if the land taken for the streets be considered. The Thompsons did not go to and look at the house occupied by Mrs. Nichols.
Mr. Wenne testified that all he was authorized to sell was 2 1/2 acres and a 4-room house, and he told the Thompsons he was selling 2 1/2 acres; that he had no authority to sell more than one house, and neither Mr. nor Mrs. Thompson claimed they purchased two houses. He corroborated the testimony of Mr. Blevins in pointing out the approximate boundaries, including the west boundary line.
Mr. Thompson testified as follows: Mr. Wenne told him the tract was practically square, except for an acre out in the southwest corner, and had about 3 acres in it. Mr. Blevins told him there were 2 1/2 acres, more or less, and showed him a plat or survey, read off the figures of the boundaries, and witness made a sketch of it. Later he surveyed the property described in his deed and found he had 3.2 acres. No one pointed out any boundaries to him or any line between the two houses. There was an old fence around a garden spot but the weeds obscured it. He saw the advertisement but did not go there to buy 2 1/2 acres and a 2-bedroom bungalow. The land where Mrs. Nichols lived was not discussed. They did not go down to see it or walk around the ground. He talked to Mr. Blevins for about a half hour.
Mrs. Thompson testified she was interested in the 4-room house and did not pay attention to what was being said and that her husband "kind of drawed a diagram or something" on scratch paper — she did not pay much attention to it.
The Thompsons desired to purchase the property, but, in order to purchase, had to sell the equity in their home and obtain a loan to meet the $5,500 purchase price. On September 5, 1950, Mr. and Mrs. Thompson contracted to purchase the property which was described as "Parts of Lots 6, 7 and 8, Meadow Lawn, in Jackson county, Missouri, according to the recorded plat thereof. Property known and designated as 66-Palmer." The contract was conditioned upon the sale of the Thompson property for $8,500, subject to a mortgage securing $6,100, the proceeds to be applied on the contract, and the Thompsons obtaining a loan of $3,000. The Thompsons paid $200 down.
William H. Durbin, an employee of the Davis Realty Company, looked at the Thompson property and purchased it.
Mr. Wenne and Mr. Durbin delivered the Blevin's abstract, with a certificate of title dated September 12, 1950, to the Thompson home. The certificate of title covered all the land standing in the Blevins name, including the south 228.25 feet of Lot 7 for which the Blevinses had not executed a deed. Mr. Thompson testified he compared the certificate with the sketch he had made and the two matched.
Mr. Davis advised the Thompsons that the Blevins property was subject to a first mortgage. Mr. Wenne testified that Mr. Thompson asked him to apply for a $3,000 loan and to increase the mortgage on the Blevins property; that he took it up with the North American association but they were not interested. Mr. Thompson testified that he did not know of the North American loan and never authorized any one to see about increasing it; that he first learned of the loan at the closing of the transaction when informed it could be assumed and a second mortgage given Mrs. Blevins. Mrs. Thompson testified she knew there was a loan on the Blevins property and that Mr. Wenne was to secure a loan for them. The deed of trust to the North American association did not include the land where Mrs. Nichols lived, but the Thompsons testified they did not see this instrument while they had the abstract.
The transaction was closed at the office of the Davis Realty Company at night, Mrs. Blevins testifying they were there until after 11 p.m. Mr. Davis, Mr. Wenne, Mr. Durbin, Mr. Blevins, Mrs. Blevins, and Mr. and Mrs. Thompson were there, Mr. and Mrs. Thompson being the last to arrive.
Neither the grantors nor the grantees had an attorney. Mr. Davis made out the papers, the deed, the $700 note of the Thompsons to Mrs. Blevins, and the Thompson deed of trust, securing the $700 note. He never saw the property. The deed and deed of trust described the property by metes and bounds and included the land on which Mrs. Nichols lived. The deed is dated September 22, 1950.
The testimony is that no one instructed Mr. Davis how to draft the papers, neither the Thompsons nor the Blevinses, and the description of the property was not discussed. Mr. Davis testified he took the description of the Blevins property from the abstract and his statement in his deposition that he took the description from a deed furnished by the Blevinses is in error.
Mr. Thompson testified that they handed Mr. Durbin's check over on the purchase price; that the papers were ready when he arrived; that the abstract was there and he and Mrs. Thompson compared the descriptions with the certificate to the abstract and they were the same. Mrs. Thompson corroborated her husband.
Mr. Davis, Mr. Wenne and Mrs. Blevins gave testimony to the effect the papers were prepared by Mr. Davis in the presence of all the parties.
Mr. Blevins and Mrs. Blevins did not compare the descriptions or read the papers. Mr. Blevins stated they left it to Mr. Davis.
Mr. Davis testified that all the parties understood Mr. and Mrs. Blevins were conveying 2 1/2 acres to Mr. and Mrs. Thompson and he intended to convey that amount. Mr. Durbin testified the Thompsons were to receive 2 1/2 acres and a 2-bedroom bungalow.
This controversy developed two or three weeks after the deal was closed. The Thompsons were in possession.
Mr. Davis testified that some one called him on the telephone, stating she was Mrs. Thompson and that the loan company or its attorney said they had more ground than they were supposed to have. He informed her the mistake could be easily corrected. Mr. Blevins testified that Mrs. Thompson telephoned him and said there was an error, they had more land than they purchased. Mrs. Blevins testified that Mr. Thompson told her he had more ground than he was supposed to have, claimed he owned her mother's place, and did not understand the streets came off the ground.
Thereafter the grantors, grantees, Mr. Claude A. Nichols (Mrs. Blevins' brother), Mr. Davis, Mr. Wenne and Mr. Durbin met two or three times at the Davis Realty Company.
According to Mr. Blevins and Mrs. Blevins, Mr. Thompson there stated that he had more land than he purchased; that they would try to get together; and later that he would deed the 228.25 feet of Lot 7 back for $100 plus the cost of surveying and his loss of time from work. They refused to pay this. Mr. Thompson said he would think it over.
Mr. Davis testified that Mr. Thompson said a mistake had been made and he was willing to settle for $100; that he wanted a full 2 1/2 acres, because that was what was represented, some had been taken off for road purposes, and that Mr. Thompson never claimed more than 2 1/2 acres of land.
Mr. Wenne's, Mr. Durbin's and Mr. Nichols' testimony was to the effect Mr. Thompson wanted $100 and his expenses.
Mr. and Mrs. Thompson's version follows: Mr. Blevins came to their home and stated that Mrs. Blevins' brothers were making trouble because the little house was included in the deed. At the meeting at the Davis Realty Company the Blevinses claimed the Thompsons were not supposed to get the little house; that the Blevinses made no claim about the land or for it to be deeded back; and that the Thompsons finally told them they could take the little house off for $100 and that they never offered to deed back the ground on which the little house stood. Mrs. Thompson testified that after they talked to Mr. Blevins they realized he did not know definitely that there were 2 1/2 acres. On January 17, 1951, she notified Mrs. Nichols to quit.
The Thompsons paid off the notes secured by the deeds of trust to the North American association and to Mrs. Blevins the first part of December, 1950.
The reformation of an instrument may be had upon evidence that is clear and satisfactory, convincing the mind of the chancellor that the instrument does not express the contract the parties agreed upon, a mutual mistake. Employers' Indemnity Corp. v. Garrett, 327 Mo. 874, 38 S.W.2d 1049, 1054[10, 11]; Van Eaton v. Dennis, Mo.Sup., 242 S.W.2d 21, 25[3, 4]; Dildine v. Rimpson, Mo.App., 240 S.W.2d 214, 220; Byers v. Buettner, 239 Mo.App. 510, 191 S.W.2d 339, 351. The evidence need not be undisputed. Net Realty Inv. Co. v. Dubinsky, Mo.App., 94 S.W.2d 1108, 1117[8]; Friday v. Scherer, Mo.App., 110 S.W.2d 819, 823[2].
We think the evidence meets the requirements for reformation. It established that the property listed with the real estate agent and advertised for sale for $5,500 was a 2-bedroom bungalow, the 4-room house, and 2 1/2 acres of land. The 2-room house or 3.2 acres of land was not listed, advertised or mentioned. The grantees went to view the property advertised for sale. No attempt was made to definitely describe the land in the sale contract. The grantors' deed of trust to the North American association covered only the 2 1/2 acres and 4-room house. Grantors' deed stated that the land conveyed was subject to said mortgage of record. It did not state that only a part of the land was subject to mortgage. From the record before us there was no warranty or quitclaim deed in the abstract of title describing the property as described in grantors' deed. We are unable to follow the testimony in the depositions wherein witnesses stated the description was secured from a deed and, as Mr. Davis testified, such statements must have been in error. Had the description been taken from the grantors' deed of trust, the only instrument of record having a description of property owned by the Blevinses, and not from the certificate on the abstract, the deed would not have conveyed the south 228.25 feet of Lot 7. According to the Thompsons the deed conveyed more than 2 1/2 acres, to wit: 3.2 acres, and more than a 2-bedroom bungalow, to wit: the 4-room bungalow and a 2-room house, having a half-bath, with water and electric facilities. The boundaries pointed out to the Thompsons did not include the 2-room house according to Mr. Blevins and Mr. Wenne. There were no negotiations concerning the 2-room house between the grantors, the real estate agent, and the grantees and the grantees did not inspect it or go over to it. The foregoing and other testimony herein narrated establishes the deed did not speak the agreement between the parties, and this is especially true upon giving due deference to the findings of the chancellor. Steger v. Seabaugh, 346 Mo. 728, 142 S.W.2d 1001, 1004[2]; Bartlett v. White, Mo.Sup., 272 S.W. 944, 956[6, 7]; Sicher v. Rambousek, 193 Mo. 113, 129, 91 S.W. 68, 72; Leitensdorfer v. Delphy, 15 Mo. 160, 167, 55 Am.Dec. 137.
The grantees say the decree is in error because the petition did not allege and the evidence did not show that the scrivener was the agent of both parties in drafting the deed. Dougherty v. Dougherty, 204 Mo. 228, 237, 238, 102 S.W. 1099, 1101, 1102; Stephens v. Stephens, Mo.Sup., 183 S.W. 572, 573[3]; Hood v. Owens, Mo. Sup., 293 S.W. 774, 779; Emerson-Brantingham Imp.Co. v. Rogers, Mo.Sup., 229 S.W. 779, 781[4].
The question of the agency of the Davis Realty Company and Mr. Davis was an issue upon which evidence was adduced without objection. Section 509.500 RSMo 1949, V.A.M.S., contemplates that issues not pleaded but tried are treated as if raised by the pleadings. Under the instant record the parties made their agreement and the mistake occurred in the description of the land prepared by the scrivener. The sales contract provided that "the seller shall deliver to the buyer at the office of said Davis Realty Co." a proper "warranty deed," and "the buyer shall then and there pay the balance" of the cash payment "and execute and deliver to the seller the note and deed of trust or mortgage, if any, here in before provided for." Neither grantors nor grantees had an attorney. Mr. Davis prepared the deed and deed of trust in the presence of the parties and without direction from either as to the description of the property for the sellers' warranty deed or for the buyers' deed of trust. In so doing he was acting for both parties. In such circumstances it has been considered that the agency of the scrivener is unimportant. McCormick v. Edwards, 351 Mo. 1017, 174 S.W.2d 826, 828[1,2]; Federal Land Bk. v. McColgan, 332 Mo. 860, 59 S.W.2d 1052, 1056[15, 16]; Bartlett v. White, supra; Hoppe v. Boerger, Mo.App., 116 S.W.2d 195, 197[3]; Robinson v. Gentry, Mo.App., 106 S.W.2d 913, 918[4]. This is not a case where there was no previous agreement or where the scrivener acted for only one of the parties and the mutuality of the mistake was not established.
The grantees say the grantors were guilty of such gross and inexcusable negligence as a matter of law as to defeat any right to relief. This issue was not presented in the grantees' answer, was not passed on by the trial court, and was not preserved in the motion for a new trial. It appears first in grantees' brief. Section 512.160 RSMo 1949, V.A.M.S., provides that "no allegations of error shall be considered in any civil appeal except such as have been presented to or expressly decided by the trial court." Blase v. Austin, 362 Mo. 409, 242 S.W.2d 29, 31[2]. That the grantors should not be denied relief on the stated ground under the instant record, see McCormick v. Edwards, 351 Mo. 1017, 174 S.W.2d 826, 829[5]; McVey v. Phillips, Mo. Sup., 259 S.W. 1065, 1067[3]; Berry v. Continental Life Ins. Co., 224 Mo.App. 1207, 33 S.W.2d 1016, 1018[1]; New York Life Ins. Co. v. Gilbert, 215 Mo.App. 201, 256 S.W. 148, 151, 152; Conrath v. Houchin, 226 Mo.App. 261, 34 S.W.2d 190, 195; Columbian Nat. Life Ins. Co. v. Black, 10 Cir., 35 F.2d 571, 575[8, 9], 71 A.L.R. 128.
The judgment is affirmed.
WESTHUES and BARRETT, CC., Concur.
The foregoing opinion by BOHLING, C., is adopted as the opinion of the court.
All concur.