DAN B. DOBBS, LAW OF REMEDIES ยง 9.4(1) (3d ed. 2018) [hereinafter DOBBS 3d]. "A contract may be reformed" in two situations: (1) where there is a "mutual mistake of both parties"; or (2) "where one party is mistaken and the other commits fraud or engages in inequitable conduct." Amara V , 775 F.3d at 525 (citing Simmons Creek Coal Co. v. Doran , 142 U.S. 417, 435, 12 S.Ct. 239, 35 L.Ed. 1063 (1892) ); see also Conn. Fire Ins. Co. v. Oakley Improved Bldg. & Loan Co. , 80 F.2d 717, 719 (6th Cir.) (The courtโs "jurisdiction to reform written instruments where there is a mistake on one side and inequitable conduct on the other is undoubted." (citing Simmons Creek Coal Co. , 142 U.S. at 435, 12 S.Ct. 239 ) ), cert. denied , 298 U.S. 687, 56 S.Ct. 954, 80 L.Ed. 1406 (1936).
Traditional equitable principles do not require a separate showing of harm for reformation. See, e.g., Baltzer v. Raleigh & Augusta R. Co., 115 U.S. 634, 645, 6 S.Ct. 216, 29 L.Ed. 505 (1885) (โ[I]t is well settled that equity would reform the contract, and enforce it, as reformed, if the mistake or fraud were shown.โ); 1 Dobbs, Law of Remedies ยง 4.3(7) at 617 (2d ed. 1993) (โWhen parties come to an agreement, but by fraud or mistake write it down in some fashion that does not truly reflect their contract, equity will reform the writing to make it reflect the parties' true intention.โ).Coal Co. v. Doran, 142 U.S. 417, 435, 12 S.Ct. 239, 35 L.Ed. 1063 (1892) ; see also Amara III, 131 S.Ct. at 1879 (โThe power to reform contracts ... is a traditional power of an equity court ... and was used to prevent fraud.โ); 27 Williston on Contracts ยง 69:55, at 160 (4th ed.2010) (reformation is available in a situation where โowing to the fraud of one of the parties and mistake of the other[, the writing] fails to express the agreement at which they arrivedโ).
However, the underlying premise of this argument is incorrect: as a practical matter, publication in the Federal Register is not so protective. See Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380, 387, 68 S.Ct. 1, 92 L.Ed. 10 (Jackson, J., dissenting). Second, and more importantly, insofar as defendants' argument is aimed at what Congress meant in using the phrase "actual and timely notice," it should be noted that actual notice consistently has been interpreted as allowing proof by either direct or circumstantial evidence. See Simmons Creek Coal Company v. Doran, 142 U.S. 417, 438, 12 S.Ct. 239, 35 L.Ed. 1063.National Labor Relations Board v. Vapor Recovery Systems Company, 311 F.2d 782, 786 (9th Cir. 1962). The Instruction was issued on January 14, 1976, and defendants were found to have had actual notice of its purport before their entries upon Kahoolawe in January and February 1977.
Indeed, when the facts appear which justify the reformation of a writing, a court may 12 Am.Jur., Contracts, ยง 138; 45 Am.Jur., Reformation of Instruments, ยง 54; 76 C.J.S., Reformation of Instruments, ยง 25; Walden v. Skinner, 1879, 101 U.S. 577, 25 L.Ed. 963; Simmons Creek Coal Co. v. Doran, 1892, 142 U.S. 417, 435, 12 S.Ct. 239, 35 L.Ed. 1063; Hawkins v. Fradkin, 1949, 85 U.S.App.D.C. 310, 178 F.2d 705, 708; Prudential Ins. Co., of America v. Strickland, 6 Cir., 1951, 187 F.2d 67, 70. In Simmons Creek Coal Co. v. Doran, supra [ 142 U.S. 417, 435, 12 S.Ct. 245] the principle is summed in this manner:
But coming closer to the liability of the defendants in the instant suit, the evidence shows that Universal Oil Products Company of South Dakota, after its organization, is chargeable at least with constructive knowledge, and the Court believes with actual knowledge, of the equitable rights and interests of Sunset Oil Refining Company in the patents and patent applications that had been transferred to Universal. The principles of constructive knowledge are stated in Simmons Creek Coal Company v. Doran, 142 U.S. 417, 12 S.Ct. 239, 35 L.Ed. 1063. There the Court, at page 439 of 142 U.S. 12 S.Ct. at page 246, 35 L.Ed. 1063, said: "Vice-Chancellor Wigram in Jones v. Smith, supra [1 Hare 43], laid it down that cases in which constructive notice had been established, resolved themselves into two classes: First, those in which the party charged had actual notice that the property in dispute was in some way affected, and the court has thereupon bound him with constructive notice of facts to a knowledge of which he would have been led by an inquiry into the matters affecting the property, of which he had actual notice; and, secondly, those where the court has been satisfied that the party charged had designedly abstained from inquiry for the purpose of avoiding notice. If there is not actual notice that the property is in some way affected, so that the case does not fall within the first class, and no fraudulent turning away from a knowledge of facts which the res gestae would suggest to a prudent mind, or gross and culpable neglig
Therefore I think the evidence falls short of showing that there was a clear and specific antecedent agreement between the parties different from that which was embraced in their signed contract. It is, of course, well settled that to justify a court in reforming a contract, the proof of both the original agreement and the mistake or error in reducing it to writing must be clear and convincing. Simmons Creek Coal Co. v. Doran, 12 S. Ct. 239, 142 U.S. 417, 35 L. Ed. 1063; U.S. v. Milliken Imprinting Co., 26 S. Ct. 572, 202 U.S. 168, 50 L. Ed. 980; Otis v. Texas Co., 96 So. 1, 153 La. 394; William Cramp Sons Ship Engine Bldg. Co. v. United States, 36 S. Ct. 70, 239 U.S. 221, 60 L. Ed. 238; Medical Society v. Gilbreth (D.C.) 208 F. 899. As stated by the Supreme Court, in Philippine Sugar Estates v. Government of the Philippine Islands, 38 S. Ct. 513, 247 U.S. 385, 62 L. Ed. 1177: "Reformation [of a written instrument] will not be granted, unless the proof of mutual mistake be `of the clearest and most satisfactory character.
" Again, in the case of Simmons v. Doran, 142 U.S. 417, the court at page 442 ( 12 S. Ct. 239, 247, 35 L. Ed. 1063) says: "Again, actual and unequivocal possession is notice, because it is incumbent on one who is about to purchase real estate to ascertain by whom and in what right it is held or occupied; and the neglect of this duty is one of the defaults which, unexplained, is equivalent to notice." Some of the other cases cited by counsel are Lea v. Polk, 62 U.S. (21 How.) 493, 16 L. Ed. 203; Landes v. Brant, 10 How. 348, 13 L. Ed. 449; Horback v. Porter, 154 U.S. 549, 14 S. Ct. 1160, 18 L. Ed. 30; Higgins v. White, 118 Ill. 619, 8 N.E. 808.
Whether the purchaser so inquires or not, he is still charged with such knowledge and may not classify himself as an innocent purchaser for value. Langford v. Welton, 48 S.W.2d 860; McBride Realty Co. v. Grace, 15 S.W.2d 957; Titus v. North Kansas City Dev. Co., 264 Mo. 229, 174 S.W. 432; Simmons Creek Coal Co. v. Doran, 142 U.S. 417, 12 Sup. Ct. 239; Jones v. Nichols, 280 Mo. 653, 216 S.W. 962; McBride Realty Co. v. Grace, 223 Mo. App. 588, 15 S.W.2d 957; Bowman v. Anderson, 47 S.W. 1087; McWhorter v. Oliver, 2 S.W.2d 281; Patterson v. Booth, 103 Mo. 402, 15 S.W. 543; Smith v. Holdoway Const. Co., 344 Mo. 862, 129 S.W.2d 894; Borgess Inv. Co. v. Vette, 142 Mo. 560, 44 S.W. 754; Mayes v. Robinson, 93 Mo. 114, 5 S.W. 611; Morris v. Hanssen, 336 Mo. 169, 78 S.W.2d 87; Secs. 3040, 3041, 3042, 3071, 3072, R.S. 1939; 41 C.J., pp. 532, 533, secs. 474, 475. (2) The possession of Charles A. Stratton, the tenant of the legal holder of the title to the property in question, Charles P. Woodbury, was neither actual nor constructive notice of appellant's equities.
Except as otherwise provided by Statute, the rule caveat emptor applies to a purchaser of real property. Simmons Creek Coal Co. v. Doran, 142 U.S. 417, 12 S.Ct. 239, 35 L.Ed. 1063. The responsibility for securing the title of the owner rests upon the purchaser.
But, while the contents of a lost unrecorded deed are provable by parol in an action at law, equity may intervene to remove the resultant cloud upon the record title on the hypothesis that it subjects the title to hazard and peril not fully remediable at law. Lancey v. Randlett, 80 Me. 169; 13 Atl. Rep. 686. See, also, SimmonsCreek Coal Co. v. Doran, 142 U.S. 417; 12 S.Ct. 239;35 L.Ed. 1063; Story Eq. Jur. ( 14th ed.) ยง 125. These considerations do not obtain here.