Weissenfels v. Cable , 208 Mo. 515 ( 1907 )

On motion eor rehearing.

LAMM, J.

In a motion for a rehearing plaintiff’s learned counsel, among other reasons for granting one, set up the following contention, viz.: ‘ ‘ Furthermore, it is proper to observe here, that we claim mistake in the execution of the quitclaim deed as well as deceit” —the quitclaim deed referred to being the one from Boone to defendant. If counsel by that contention mean to say that they sought to amend the pleadings so as to base a right to avoid the deed on mistake as well as deceit, they inadvertently fall into error. No such offer was made. The first amendment offered was this: “Plaintiffs further state that the quitclaim deed from Morgan Boone and wife to the defendant Cable, dated the 15th of February, 1904, was procured by deceit and misrepresentation and without consideration, and that same constitutes an apparent cloud on the title and asks the same be removed.” The second amendment offered, was like unto the first. If counsel mean that in their brief here they claimed mistake in the deed as a reason for sustaining the decree, that is true. But it is elementary that a decree must be responsive to the pleadings and must be within their lines. [Black v. Early, 208 Mo. 281, and cases cited.] So, too, it is rudimentary that a mistake furnishing ground for equitable interference must be a mutual mistake of fact, etc. [Chrisman v. Linderman, 202 Mo. l. c. 613.] There was no substantial evidence to base such form of mistake upon, and, there being no offer of such amendment, the question of mistake is in the air. If the evidence had warranted the amendment, and if the amendment had been offered, the decree being for plaintiff, we could have treated the case as if the amendment had been made. [Young v. Glascock, 79 Mo. l. c. 579, et seq.]

, The motion for a rehearing is overruled.

All concur.