Cross v. Bean , 81 Me. 525 ( 1889 )

Haskell, J.

Equity will reform a written instrument so that it shall conform to the precise intent of the parties to it, when a mutual mistake is shown by proofs that are full, clear and decisive, free'from doubt and uncertainty, and such as to entirely satisfy the conscience of the court. Fessenden v. Ockington, 74 Maine, 123.

A mutual mistake between Freeman and Cross and Gorrish, the parties to the deed sought to be reformed, is sufficiently shown to authorize the court to reform that deed, had the rights of another not intervened; but, the bill charges that Freeman, since the delivery of that deed, conveyed the premises intended to have been conveyed by it to Bean, and that the latter deed was not intended by the parties to convey such premises, but another lot of land; and by reason of a mutual mistake between the parties to this deed,' its reform is also sought in order to authorize the reform of the first named deed from Freeman to Cross and Gerrish.

Inasmuch as the parties have agreed that the answer of Freeman shall be considered as though it had been called for in the bill to be under oath, it becomes evidence as to the matters in it responsive to thé charges in the bill, and must be overcome by evidence.

Bean, in his answer, emphatically denies the charges in the bill that his deed from Freeman was mutually intended'to convey a lot of land different from that described in it; and the proof fails to clearly and decisively sustain the charges of the bill in this particular. Whether he had knowledge of the deed from Freeman to Cross and Gerrish and of the error in it before he obtained his own deed, it is unnecessary to now decide, as no allegation of that sort is contained in the bill.

If Cross and Gerrish desire to amend their bill, by charging Bean with such knowledge of their deed and of its erroneous description of the premises, named in it, as will destroy the deed to Bean as a bona fide purchaser, they should be allowed to so do. within thirty days after decree; otherwise the bill must be dismissed with costs.

Decree accordingly.

Peters, C. J., Walton, Daneorth, Virgin and Emery, JJ., concurred.