Opinion
No. 32685.
April 12, 1937.
1. EQUITY.
Allegations in bill seeking to correct description of land in trust deed were admitted by not being denied where answer, in making admissions, stated that defendants' memory was not perfect as to some of transactions set forth, but failed to deny the allegations of the bill in reference thereto.
2. REFORMATION OF INSTRUMENTS.
Son to whom parents conveyed property which had been erroneously omitted from trust deed given by parents to bank to secure loan and who knew of trust deed held "voluntary grantee" of trust deed, where property was given to son for past services about which he had no contract, and hence son took subject to rights of bank to have deed express the description intended by the parties.
3. REFORMATION OF INSTRUMENTS.
Bank held entitled to have trust deed reformed so as to include 10 acres which had been erroneously omitted in description of property in trust deed, where it was shown that the error was inadvertent, and that parties intended a deed of the entire property of trustors.
APPEAL from the chancery court of Jasper county. HON. A.B. AMIS, SR., Chancellor.
A.B. Amis, Jr., of Newton, for appellants.
A conveyance, mortgage, deed of trust or other incumbrance upon the homestead exempted from execution shall not be valid or binding unless signed by the wife of the owner if he be married and living with his wife.
Section 1778, Code of 1930; Section 1834, Hemingway's Code 1917.
The allegations, admissions and proof show conclusively that the appellants, R.A. Smith and M.A. Smith, were and are man and wife, living together as such, in a residence located on the ten acres of land involved in this cause, and that the appellant, R.A. Smith, was the owner of said property.
We, therefore, contend that under such allegations, admissions and proof the ten acres of land involved in this cause, being homestead property under section 1765, Code of 1930, could not be encumbered unless signed by M.A. Smith, wife of R.A. Smith, as provided by section 1778, Code 1930.
The proof clearly shows what R.A. Smith intended but the question is what did Mrs. M.A. Smith intend. Under section 1528, Code 1930, R.A. Smith could not testify against his wife M.A. Smith, and, therefore, anything which he may have testified to as showing his intention does not even reflect and cannot be considered as reflecting on what Mrs. M.A. Smith intended.
We come now to the next question involved in this cause, and that is the decree of proof required in a proceeding to reform a written instrument. This court has said the proof must be: Clear beyond a doubt, Harrington v. Harrington, 2 How. 701; Rogers v. Clayton, 149 Miss. 47, 115 So. 106; Clear and satisfactory, Norton v. Coley, 45 Miss. 125; Must be of the clearest, Phoenix Ins. Co. v. Hoffheimer, 46 Miss. 645; Not only by the preponderance of testimony, but practically to the exclusion of every other reasonable hypothesis, Bank of Summit v. McGehee, 142 Miss. 655; Jones v. Jones, 88 Miss. 784, 41 So. 373; Proof clear and free from doubt, Mosby v. Wall, 23 Miss. 81, 55 Am. Dec. 71; St. Paul Fire Marine Ins. Co. v. McQuaid, 114 Miss. 430, 75 So. 255; Must rise far above mere preponderance of evidence, Lamar v. Lane, 170 Miss. 260, 154 So. 709.
We respectfully submit that the proof in this cause does not rise high enough to meet the burden imposed upon the complainant, and that the proof will not sustain the decree of reformation as rendered and entered, and that the complainant having had two opportunities to make proof sufficient, and having both times failed to make such proof, then it can be concluded that such proof cannot be made, and we, therefore, respectfully submit that this cause should not only be reversed, but that it should be likewise rendered, in that a decree finally dismissing the original bill should be here entered.
O.M. Oates, of Bay Springs, for appellee.
Where the scrivener, through unskillfulness or a lack of knowledge of the rules governing conveyances or in other matters, has failed to express in the instrument the intentions of the parties thereto, the courts have frequently granted relief by reformation. For an example, where an attorney in drawing a deed conveys different property to that intended, equity will grant relief.
23 R.C.L. 326, sec. 19.
Where there is no mistake as to the identity of the property but merely a misdescription of it in the written agreement in relation to it or in the conveyance, reformation will be allowed.
23 R.C.L. 335, sec. 27.
In the case at bar, there is no question of the identity of the particular ten acres and dwelling. The proof shows, without dispute, said property was included in application, and the identical dwelling house was inspected in the presence of Mrs. Smith by two appraisers; and that she showed W.L. Williamson, the bank's appraiser, the stove flue and heard all his questions asked about the property and the answers without an objection in face of the further fact of her activity in making the application.
In the case at bar, I am sure there can be no doubt in the mind of this court, as well as that of the lower court, that the appellee most certainly made a mistake in drafting the instrument. The evidence in this record abundantly shows this, and that it was the intention of appellee to include the land in question. Then on the other hand, the testimony, I am sure, most certainly shows that it was the intention of Smith and wife to include it for they were both present when the application was made and of their own free will offered it, plus that she thought it necessary for her to sign application.
It has been held that as between the immediate parties to a deed, a description will be corrected although the mistake arose from negligence, for the rule that equity will not aid the negligent does not apply in its fullest sense to the correction of mistakes merely in description of property granted.
23 R.C.L., sec. 46.
Prudent business men, in this modern day world of activity, make many mistakes, and these mistakes are found under a variety of circumstances, but the limitations on the jurisdiction of equity to correct these mistakes of fact are indeed few.
Brimm v. McGee, 80 So. 379.
Mr. and Mrs. Smith intended to offer the entire tract when they went to office of O.M. Oates, and did offer it, and the scrivener made the mistake in drafting.
Brimm v. McGee, 80 So. 379; 2 Pomeroy, Equity Jurisprudence (3 Ed.), par. 852; Goodbar Co. v. Dunn, 61 Miss. 618; Mosby Kyle v. Wall, 23 Miss. 81, 55 Dec. 71; Cox v. Hartford Ins. Co., 160 So. 741; Burchett v. Anderson, 133 So. 129; A.L.I. Restatement, Contracts, sec. 508.
R.A. Smith, the owner of certain lands in Jasper county, Miss., applied to and secured from the Federal Land Bank a loan of $3,000 thereon, giving a trust deed to secure same. The land described in the application for the loan, which was not signed by the wife of R.A. Smith, was the N.E. 1/4 of N.W. 1/4, and N.E. I/2 of N.W. 1/4 of N.W. 1/4, 60 acres, in section 10, township 3, range 11, and other lands, the total purporting to be 245 acres. In drafting the deed of trust, however, by error of the scrivener, the land was described as the N.E. 1/4 of N.W. 1/4 of N.W. 1/4, instead of the "N.E. I/2 of N.W. 1/4 of N.W. 1/4," thereby leaving off 10 acres, and this deed of trust was signed by R.A. Smith and his wife.
Subsequently the payments provided for in the deed of trust were not met, and the taxes were not paid, and the Federal Land Bank was proceeding to foreclose its deed of trust when the error in the description was discovered, and this bill was filed to correct the description, it being shown that the dwelling house and the improvements were situated upon the 10 acres omitted from the deed of trust. The appellants refused to correct the deed of trust, but instead, conveyed the 10 acres involved to their son.
The appellants, R.A. Smith and M.A. Smith, answered the bill for reformation of the deed of trust, and admitted making application for the loan, and that the 245 acres described in the application were intended to be embraced in the deed of trust, and admitted that their homestead was located upon the 10 omitted acres. They then alleged that they had nothing to do with the preparation of the deed of trust, but that it was prepared by the appellee's agent and submitted to the appellants for execution, and that they executed the papers so prepared.
It is true that the answer, in making these admissions, stated that the appellants' memory was not perfect as to some of the transactions, but the allegations of the bill in reference thereto were not denied, and, consequently, were admitted by not being denied. Hopper v. Overstreet et al., 79 Miss. 241, 30 So. 637. It is shown by the testimony of R.A. Smith that they did not know of the error at the time the deed of trust was executed, and did not learn of it for some years thereafter. They stated in the answer that "They did not then know exactly what property was included in such deed of trust, and did not know for quite some time thereafter just what property was included. They admit that Exhibits B and C are copies of such note and deed of trust as by them so executed. They further say that if the original application, copy of which is attached as Exhibit A, is a true copy of the application by them executed, that they then did offer 245 acres as therein described as security for such loan, but that there was no further agreement as between them and the complainant, without any further agreement, elected to accept 245 acres as security for its loan," etc.
It will be seen from this statement that the application contained an accurate description of the land owned by R.A. Smith, and that he and his wife intended to secure a loan by a deed of trust on 245 acres of land.
All the allegations of the bill, not denied by other than a general traverse, admit that appellants intended to give the appellee a deed of trust on 245 acres of land, but, through inadvertence, the description was copied erroneously into the deed of trust.
The residence on the land was inspected by the agent of the Federal Land Bank, insurance taken out thereon, and sent with the deed of trust to said bank.
Neither the wife nor the son of R.A. Smith testified in the case, but it was proven that the son knew of the deed of trust held by the Federal Land Bank, and that he was a voluntary grantee, that is, the deed to the 10 acres was given to him for past services about which he had no contract, consequently he took subject to the bank's rights.
It was clearly shown in complainant's proof that the error in the description in the deed of trust was inadvertent, and that the Federal Land Bank intended to take a deed of trust on 245 acres, consequently the chancellor was correct in reforming the instrument, and the judgment will be affirmed.
Affirmed.