Progressive Bank v. McGehee , 142 Miss. 655 ( 1926 )

^* Corpus Juris-Cyc. References: Reformation of Instruments, 34 Cyc., p. 984, n. 34. Appellant filed its bill in the chancery court of Franklin county against appellees to reform a deed of trust executed by appellees Perry C. McGehee and wife to appellant, and to cancel two conveyances of one hundred forty acres of land; one made by appellees Perry C. McGehee and wife to appellee E.R. McGehee, and the other made by the latter to Curtis Lard, ancestor of the other appellees. There was a trial on bill, answer, and proofs, resulting in a final decree dismissing appellant's bill. From that judgment appellant prosecutes this appeal.

Appellee Perry C. McGehee owned the land on which he lived in Franklin county, consisting of one hundred sixty acres. He bought one hundred sixty acres in Lincoln county. Appellant held a mortgage on his Franklin county land to secure an indebtedness of about seven hundred dollars. The purchase price of the Lincoln county land was nine hundred fifty dollars. Appellant furnished him the money to pay for the Lincoln county land, taking his and his wifes note therefor, in which was included the indebtedness already owing appellant by them, to secure which they gave a deed on the home place in Franklin county, but on only twenty acres of the Lincoln county land. Therefore there was left out of the deed of trust one hundred forty acres of the Lincoln county land. Appellant charged in its bill that this one hundred forty acres of land was intended by the parties to be included in the deed of trust; that that was the agreement before and at the time of the execution of the deed of trust; that through oversight of the draftsmen of the deed of trust the one hundred forty acres of land was left out of it. Appellees Perry C. McGehee and wife answered appellant's bill, denying its material allegations.

After the execution of the deed of trust to appellant, Perry C. McGehee and wife conveyed the one hundred forty acres of the Lincoln county land left out of the deed of trust to appellee E.R. McGehee. The latter, in turn, conveyed it to Curtis Lard, ancestor of the other appellees, who died after the conveyance and before the bringing of this suit.

In addition to seeking reformation of the deed of trust so as to make it include the entire Lincoln county tract of land of one hundred sixty acres, the bill charged that the subsequent purchasers, appellee E.R. McGehee and Curtis Lard, deceased, were purchasers in bad faith, and without consideration; that they knew, or by reasonable diligence could have known, that appellees Perry C. McGehee and wife intended to convey the one hundred forty acres of land in the deed of trust theretofore executed by them to appellant. Appellee E.R. McGehee and the heirs of Curtis Lard, deceased, answered the bill, denying its material allegations so far as its charges concerned their rights.

If appellant has not made a case for reformation of the deed of trust involved, we do not reach the decision of the other questions in the case; namely, the bona fides of the conveyances to the appellee E.R. McGehee and Curtis Lard, deceased.

The evidence to support the decree of the chancellor is not strong. On the contrary, the evidence to support the position of the appellant is very strong. We do not think it would answer any useful purpose to go into the evidence pro and con in detail. It is sufficient to say that there was conflict. In Harrington v. Harrington 2 How. 701, 718, Judge SHARKEY said for the court:

"The proof should be clear beyond a doubt, because, . . . it is better that a doubtful written instrument should stand, than that a doubtful provision should be substituted by parol testimony. . . . We cannot, on the mere ground of probability, reform written instruments for mistakes."

In Lauderdale v. Hallock, 7 Smedes M. 629, the court said that parol evidence to explain or vary the terms of a writing must be received with "great caution and distrust." In Jones v.Jones 41 So. 373, 88 Miss. 784, the court said that evidence to warrant the reformation of a written instrument must sustain the allegation of mutual mistake "practically to the exclusion of every other reasonable hypothesis." St. P.F. M. Ins. Co. v. McQuaid, 75 So. 255,114 Miss. 430, is to the same effect. The holding of our court in this respect is in accord with a great weight of authority in other jurisdictions.

Applying these principles to the case in hand, we feel impelled to affirm the decree of the chancellor.

Affirmed.