Opinion
No. 32412.
November 23, 1936.
1. REFORMATION OF INSTRUMENTS.
Rule that party taking voluntary deed based on love and affection, having no valuable consideration, cannot have deed reformed but must take it as it exists, may have exceptions where family settlement is involved.
2. REFORMATION OF INSTRUMENTS.
Where valid monetary consideration for deed has in fact been paid, it is competent to show that fact by credible witnesses to extent required by law to reform an instrument, and true consideration for conveyance may be shown by parol.
3. REFORMATION OF INSTRUMENTS.
Bill to reform deed which alleged that deed, by which deceased conveyed to niece, who had lived with him as daughter, property for recited consideration of love and affection, had for its real consideration payment of taxes, debts of deceased, and burial insurance for deceased held not demurrable.
APPEAL from the chancery court of Carroll county. HON. T.P. GUYTON, Chancellor.
S.E. Turner, of Carrollton, for appellants.
It is the contention of appellants that the deed made by J.M. Shute to Mrs. Willie Shute Daves, sought to be cancelled and reformed was a voluntary deed, made for love and affection and without consideration, does not come within the exceptions where voluntary deeds can be reformed, this suit in no way affecting the settlement of a family estate, the said Mrs. Willie Shute Daves, the appellee herein, not being an heir at law of the said J.M. Shute, deceased.
A grantee who is a mere volunteer in a deed of conveyance cannot maintain a bill to reform deed, unless it represents a family settlement, or comes within some exception to the general rule. A volunteer cannot ordinarily have a conveyance reformed, and the pleadings must bring a case within the exceptions, before such will be entertained.
Herod v. Robinson, 149 Miss. 354, 115 So. 40; Spencer v. Spencer, 75 So. 770, 115 Miss. 71; Miles v. Miles, 37 So. 112, 84 So. 624.
It is also the contention of appellants that to reform the deed in this case the mistake in description, if a mistake, must have been a mutual mistake, and the pleadings, that is, the bill of complaint, fails to show that it was a mutual mistake, if such.
Rogers v. Clayton, 115 So. 100; Progressive Bank of Summit v. McGehee, 107 So. 876, 142 Miss. 655.
One seeking reformation of a written instrument against the consent of another person in interest, on the ground of mistake, must show clearly and satisfactorily that the instrument as written fails to express the real agreement made by the parties.
Wilczski v. L. N.R.R. Co., 6 So. 709, 66 Miss. 595; Wise v. Brooks, 13 So. 836, 69 Miss. 891; Hall v. Lafayette County, 13 So. 38, 69 Miss. 529; Jones v. Jones, 41 So. 373, 88 Miss. 784.
Reformation of written instruments for mistake of fact can only be decreed upon clear and satisfactory proof of such mistake.
Dunbar v. Newman, 46 Miss. 231.
T.O. Yewell, of Carrollton, for appellants.
The deed sought to be reformed in this suit is purely, simply and unequivocally a voluntary conveyance, a deed of gift, and no amount of argument or circumlocution can take it out of that class of instruments. Being such it clearly falls within the general rule that voluntary conveyances cannot be reformed.
Herod v. Robinson, 115 So. 40; Spencer v. Spencer, 75 So. 770, 115 Miss. 71.
There is no contention by the appellee that the deed was given in settlement of a family estate. Neither is there any charge of fraud. The case does not fall within any of the exceptions to the general rule.
Spencer v. Spencer, 115 Miss. 71.
The pleadings in this case show that the mistake in the description of the land was made, if in fact any mistake was made, a year and a day before the death of the grantor, and we suggest that that was ample time in which to detect the error, if any was made, and to have the grantor correct the error himself.
R.C. McBee, F.M. Witty and A.H. Bell, all of Greenwood, for appellee.
In the absence of evidence to the contrary the expressed consideration will be held to be true and only one, but it has been held that the consideration of a deed may always be inquired into when the principles of justice require it.
Martin v. Raleigh State Bank, 146 Miss. 1, 111 So. 448; 51 A.L.R. 442; 18 C.J. 266, sec. 222.
Accordingly it is held by an uncounted multitude of authorities that the true consideration of a deed of conveyance may always be inquired into, and shown by parol evidence, for the obvious reason that a change in or contradiction of the expressed consideration does not affect in any manner the covenants of the grantor or grantee, and neither enlarges or limits the grant.
17 Cyc. 653.
And it is held that in equity either party to a deed may aver and prove against the other, or against the purchaser with notice, the true consideration on which the deed is founded, though it be different from that mentioned.
8 R.C.L. 969, sec. 41; Hitz v. National Metropolitan Bank, 28 L.Ed. 577, 111 U.S. 722; Hartford Connecticut Trust Co. v. Divine, 21 A.L.R. 134.
The amended bill only requests the court below to permit the appellee to introduce evidence that the consideration recited in the deed is not the actual consideration but that a different one is the true consideration, and is sufficient to take the deed from the class of voluntary instruments to the class of instruments for consideration and not of gift, therefore subject to reformation. There is no rule of law that will permit the party to a law suit from introducing evidence in support of his bill, and the appellee in view of the well known rule of law that parol evidence is admissible to show the true consideration in a deed should be permitted to show, if she can, that the consideration was not love and affection alone, but a valuable monetary consideration paid by her husband to the grantor.
All grantees need not be parties to the consideration. And the consideration may be furnished by a third person.
Read v. Gould, 139 Ga. 499, 77 S.E. 642; 18 C.J. 163.
If the consideration can be shown to be different than expressed in the deed, it therefore follows that it is subject on proper proof to be reformed.
2 Restatement of Law of Contracts, 974, sec. 506; McMechan v. Warburton, Irish Law Reports, 1 Ch. Div. 435.
The action of the chancellor in overruling the demurrer to the amended bill of complaint is correct and the cause should be affirmed.
The appellee, Willie Shute Daves, nee Willie Shute, filed a bill to reform a deed, dated July 28, 1933, made to her by J.M. Shute, reading as follows:
"For and in consideration of the love and affection which I have for and bear towards her, I hereby sell, convey and warrant unto Mrs. Willie Shute Daves, the following described property lying and being situate in Carroll County, Mississippi, to-wit; The Northeast quarter of Section Eleven, Township Seventeen, Range 2, Carroll County, Mississippi. To have and to hold unto her, her heirs and assigns forever. Witness my signature this the 28th day of July, 1933. J.M. Shute."
It was alleged in the bill that J.M. Shute and his wife had taken Willie Shute Daves when she was six years old, she being his niece, and had reared and supported her until she was fifteen years old; that they had no children of their own, and regarded appellee with great affection and devotion, and that it was the intention of J.M. Shute to convey to her the one hundred and sixty acres upon which the home was situated, which was the northeast part of the west half of the northeast quarter, and the northwest quarter of northwest quarter, and the east half of west half of section twelve, township seventeen, range two east, Carroll county, Miss.; that J.M. Shute had acquired this land through a will made by his father, and that it was the intention of all parties when said deed was made to Willie Shute Daves to convey the one hundred and sixty acres of land of the northeast corner of the home place. It was also alleged in the bill that, prior to the execution of said deed, in 1932, appellee's husband, R.W. Daves, paid the taxes as J.M. Shute was unable to do so by reason of his financial condition, and the same condition existing in 1933 and 1934, that R.W. Daves again paid said taxes, as well as certain indebtedness owing by J.M. Shute to the People's Bank Trust Company, of Carrollton, the amount of taxes for these years and said payment to said bank being set forth in the bill. It was also alleged in the bill that it was understood that said payment of taxes by Daves constituted a debt, although neither Daves nor his wife, the appellee, intended to press said debt upon J.M. Shute. The bill, as originally filed, was demurred to, the demurrer was sustained, and an amended bill, by leave of the court, was filed in which it was alleged that the real and true consideration of the deed from J.M. Shute to appellee was the payment by R.W. Daves of the taxes, etc., above referred to, and the payment of burial insurance on the life of J.M. Shute, the proceeds of which paid his funeral expenses, his wife having predeceased him, and that said J.M. Shute, in his lifetime, had expressed an intention of conveying the land to appellee because of such facts, and also because of his love and affection for her. The amended bill was also demurred to; the demurrer was overruled, and an appeal granted to settle the principles of the case.
It seems that the question presented for consideration is whether a deed, the recitals of which are love and affection, can be reformed by showing the real consideration not to be love and affection solely, but also for the matters set forth constituting a valuable consideration.
It has been held in this state that a party taking a voluntary deed based upon love and affection, having no valuable consideration, cannot have said deed reformed, and that the grantee must take the deed as it exists. Herod v. Robinson, 149 Miss. 354, 115 So. 40. It has also been held in this state that there may be exceptions to this rule where a family settlement is involved, and that a reformation may be granted by the chancery court to carry out the purposes of the settlement. Spencer v. Spencer, 115 Miss. 71, 75 So. 770; Miles v. Miles, 84 Miss. 624, 37 So. 112.
If there was, in fact, a valid monetary consideration for the deed involved, it would be competent to show that fact by credible witnesses to the extent required by law to reform an instrument, and the true consideration for a conveyance may be shown by parol. Raleigh State Bank v. Williams, 150 Miss. 766, 117 So. 365, Blum v. Planters' Bank Trust Company, 161 Miss. 226, 135 So. 353, and Moore v. Moore, 141 Miss. 795, 105 So. 850.
There are other cases showing when recitals of consideration may be shown by parol, and when they may not be so shown. See Mississippi Digest Annotated, Title, Evidence, section 419, and Mississippi and Southern Digest, Title, Evidence, section 419.
For the degree of proof required to authorize the reformation of a deed, see Progressive Bank of Summitt v. McGehee et al., 142 Miss. 655, 107 So. 876; Wilczinski v. L. . N.R.R. Co., 66 Miss. 595, 6 So. 709; Wise v. Brooks, 69 Miss. 891, 13 So. 836; Hall v. State, to Use of Lafayette County, 69 Miss. 529, 13 So. 38; Jones v. Jones, 88 Miss. 784, 41 So. 373.
The judgment of the court below will, therefore, be affirmed and the cause remanded for further proceedings.
Affirmed and remanded.