Gibson v. Johnson , 148 Ark. 569 ( 1921 )

Smith, J.

In 1895, Thomas J. Johnson and his wife executed to their daughter, Mrs. Cynthia Gibson, a deed to one hundred acres of land. This deed described the east half southwest quarter northeast quarter, section 19, township 18 north, range 28 west. On March 12,1918, the same grantors executed to their son, W. W. Johnson, a deed to one hundred and ninety acres of land, and in this deed included the twenty acres above described. Notwithstanding the fact that the twenty acres was described in both deeds, the grantor did not deliver possession to either his son or his daughter, but retained possession and collected rents thereon. Shortly after executing this last deed T. J. Johnson died.

After the death of T. J. Johnson, W. W. Johnson brought this suit against his sister, and alleged the fact to be that their father had not intended to convey the east half southwest quarter northeast quarter to Mrs. Gibson, but had in fact intended to convey her the west half southwest-quarter northeast quarter. There was a prayer that the title to the east twenty acres be divested out of Mrs. Gibson and vested in the plaintiff, and that the title to the west twenty acres be vested in Mrs. Gibson. In other words, that the deeds be so reformed as to give W. W. Johnson the east twenty acres and Mrs. Gibson the west twenty acres.

T. J. Johnson owned other lands not conveyed to either his son, W. W., or his daughter, Cynthia, and was survived by other children, who were not made parties to this suit.

Mrs. Gibson answered and denied that any mistake had been made, and much testimony was heard on this issue, and she very earnestly insists that the testimony does not clearly and satisfactorily show that a mistake was made.

The court found, however, that a mistake had been made, and that the grantor intended to convey the east twenty to "W. W. Johnson and the west twenty to Mrs. Cynthia Gibson, and entered a decree cancelling the deed to Mrs. Gribson in so far as it purported to convey the east twenty acres, and this appeal is from that decree.

We have carefully considered the testimony m tne case, and, while we do not reverse the decree on the finding of the court below on the facts, we have concluded that the court should not have granted the relief on the case made. We think, however, that W. W. Johnson has the right to prosecute this suit when proper parties have been brought before the court. 20 R. C. L., Title “Reformation,” § 31; Jones v. McNealy, 101 Am. St. Rep. 38, 139 Ala. 379, 35 So. 1022. As the case now stands, Mrs. Gribson is left with the title to only eighty acres of land; while her brother has title to one hundred and ninety; and, while it clearly appears that T. J. Johnson intended to convey his son, W. W. Johnson, that quantity of land, it appears with equal clearness that he intended to convey one hundred acres of land to his daughter, Mrs. Gibson.

The court did not attempt to invest Mrs. Gibson with title to the west twenty. In fact, the parties necessary to the making of that order were not before the court, and therein lies the error for which the decree must be reversed. As the matter now stands, the west twenty acres is a part of the T. J. Johnson estate; and, while W. W. Johnson would be, and is, estopped by this suit from claiming that twenty acres, as against Mrs. Gibson, the rights of the other heirs are not affected by this litigation, as they are not parties to it. So long as the brother and sister litigated over the east twenty acres between themselves, the other heirs could stand by and let the litigation progress, as T. J. Johnson had apparently deeded the land to both W. W. Johnson and to Mrs. Gibson.

No showing is made that the other heirs conceded Mrs. Gibson’s title to the west twenty acres, and under the decree appealed from she would have to proceed to acquire in severalty the title to that land. If suit is necessary, it will devolve upon her to show, as against the other heirs, that a mistake was made in the execution of the deeds; and we can not know what showing those heirs might make against that contention in a proceeding to divest them of their title to the west twenty acres. Their silénce in the instant litigation would not prevent them from speaking in that litigation.

By failing to make all the heirs parties W. W. Johnson has not put the court in position to do equity. All the persons whose interests are affected should he brought before the court, to the end that the court might enter a decree which does equity, not only to W. W. Johnson, but to Mrs. Gibson.

Reformation and cancellation are equitable remedies, and relief by way of reformation or cancellation is granted only when it is equitable so to do. 22 Enc. of Procedure, p. 1030; 23 R. C. L., p. 346, and eases cited. Courts have the right, in granting this relief, to impose terms or conditions which work out the equities of the case; and we have concluded that Mrs. Gibson should not be required to bear alone the burden of litigating with the other heirs a question involving the title to the twenty-acre tract which is unaffected by the decree here appealed from so far as the rights of the other heirs are concerned. !

The decree will therefore be reversed, and the cause will be remanded with directions to make all the heirs of T. J. Johnson parties to the litigation.