Opinion
No. 6805.
Decided June 29, 1945. Rehearing Denied September 7, 1945.
1. DEEDS. REFORMATION OF INSTRUMENTS. To cancel or reform a deed, the evidence of mistake must not only preponderate but must be clear and convincing. 2. APPEAL AND ERROR. In a suit to reform a quitclaim deed on ground of a mutual mistake, only question presented to the Supreme Court on appeal from a judgment for plaintiff was whether evidence was sufficient to sustain the trial court's finding. 3. APPEAL AND ERROR. In an equity case, the Supreme Court on appeal may examine the record and consider the evidence. 4. REFORMATION OF INSTRUMENTS. Clear and convincing evidence that through a mutual mistake a quitclaim deed conveyed all of plaintiff's interest in property instead of a half-interest as intended, justified reformation to convey an undivided half-interest to defendant.
See 3 C.J.S., Appeal and Error, sec. 1642; 45 Am. Jur., 652.
Appeal from District Court, Fourth District, Utah County; Dallas H. Young, Judge.
Suit by James W. Gray against Clara Slack Gray to reform a quitclaim deed. From a judgment for plaintiff, defendant appeals.
Judgment affirmed.
Christenson Christenson, of Provo, for appellant.
I.E. Brockbank, of Provo, for respondent.
This is a suit to reform a certain quitclaim deed from plaintiff to defendant, whereby plaintiff conveyed certain property located in Provo, Utah. It is now alleged that through a mutual mistake, the deed conveyed all of the plaintiff's interest in the property, instead of the 1 one-half interest which should have been conveyed. On the trial the court found the issues in favor of plaintiff, and ordered the deed reformed to convey an undivided one-half interest to defendant, and plaintiff to retain the other half interest. From this judgment defendant appeals. To cancel or reform a deed, the evidence of the mistake must not only preponderate, but must be clear and convincing.
But one question is presented to this court: Is the evidence sufficient to sustain the finding of the trial court that there was a mistake of fact in making the deed it 2 being intended to convey a one-half interest only?
We have examined the record and considered the evidence, as we may do in an equity case, and nothing will be gained by setting forth a detailed summary of the evidence. 3, 4 Suffice it to say that the record by clear and convincing evidence sustains the findings of the trial court, and the judgment appealed from is therefore affirmed. Costs to respondent.
McDONOUGH, TURNER, WADE, and WOLFE, JJ., concur.