Johnson v. Steuart , 97 Ark. 635 ( 1911 )

Kirby, J.,

(after stating the facts). The court treated the action as one for specific performance of the contract for the sale of block number two, as evidenced by the receipt for the remainder of the purchase money, describing it, and the answer and cross complaint as asking a reformation thereof because of a mistake in the description of the land or fraud of the vendee in procuring it; and in effect decreed a reformation and specific performance of the contract as reformed.

A preponderance of the evidence is not sufficient to- warrant the reformation of such a contract, for, as was said in Wilson-Ward Co. v. Farmers’ Union Gin Co., 94 Ark. 200: “This court has decided in an unbroken line of cases that, in order to reform a written instrument, the evidence must be '-clear, unequivocal and decisive.’ ” McGuigan v. Gaines, 71 Ark. 614; Goerke v. Rodgers, 75 Ark. 72; Tillar v. Wilson, 79 Ark. 256; Davenport v. Hudspeth, 81 Ark. 166; Marquette Timber Co. v. C. T. Abeles Co., 81 Ark. 420; Mitchell Mfg. Co. v. Kempner, 82 Ark. 349; Turner v. Todd, 85 Ark. 62; Cherry v. Brizzolara, 89 Ark. 309. This court has in several of the above cited cases approved the statement of the rule of evidence on this subject 'by Mr. Bishop -in his work on Contracts, § 708: “In no -case will a court decree an alteration in the ter-ms of -a duly executed written contract unless the proofs are full, clear and decisive. Mere preponderance of the evidence is not enough; the mistake must appear beyond reasonable controversy.”

The receipt for the first payment signed by appellee, I. N. Steuart, showed an agreement to sell to appellant a tract of land, situated betweet the two railroads north of one and east of the other, in extent “a city block -containing one acre or more,” and after the lands were laid off and platted the receipt for the remainder of the purchase money showed a concluded sale of that date to him of block 2 in the town -of Tokio, definitely described with the names of the streets surrounding it as shown on the plat thereof.

It is true he denies having signed this receipt, but appellant testified that he did sign it, and he admits having signed a receipt at -the time, written by appellant, after first refusing to fake the money and a heated controversy with him as to the amount and description of the land sold, appellant all the time insisting that he was -entitled to said block 2. It is not within the range of probability that appellant would have written a receipt, with the recitals in it as claimed by appellee, under the circumstances. It is before us with the undisputed signature of appellee, and it has no appearance of any changes by erasures or otherwise, and -we are convinced that he did sign it, and that he is now mistaken in his statement of its recitals. The evidence was not sufficient to justify the decree reforming .the contract.

Was the contract of sale of this land void under the act of Mar-ch 18, 1887, because of the failure of appellee’s wife to join in it?

Appellee had 187 acres of land upon which he had established his home and resided with his family, and was entitled to select no more than 160 acres of it as a homestead. He could select his homestead without .the consent or concurrence of his wife, and, having laid off and platted 20 acres of his farm as lots and blocks with .the intention of selling it as town lots and having sold some of them with reference to the plat dedicating the streets, filed and recorded as the law requires, he thereby excluded same from his right to select it as a homestead, and was thereafter limited to the lands not platted and sold to others -and the 167 acres remaining which was more than he could claim in any event. It may be that three storehouses, a depot, law office and two residences with no incorporation would not constitute this platted land a town or village within the meaning of the Constitution limiting a homestead in a town or village to one acre and preclude the appellee, if he resides within its boundaries, from claiming more than that as a homestead, but that question is not before the court as it was in the case of Clements v. Crawford Co. Bank, 64 Ark. 7.

It is contended, however, that the contract of sale was executed before the land was platted, but the first agreement at most was but one to sell while there was in fact a sale made on August 10, 1910, after the town was platted and the block of land sold was described in accordance with the said plat. If the first agreement was void because of the failure of his wife to join in it, it was only executory, and would not have prevented appellee from making the sale 'he did make on the date after the filing of the plat nor from his allowance of credit as part of the purchase price the money he had already received on the void contract conceding it to be so. We hold that his sale of said block of land on August 10 was a sale of that date which he could make, and his receipt, showing payment of all the purchase money and the description of the land sold, was evidence of a binding contract of which appellant can have and is entitled to specific performance.

The decree is reversed, and this cause remanded with directions to enter a decree in accordance with this opinion.