Huss v. Morris , 63 Pa. 367 ( 1870 )

The opinion of the court was delivered, January 3d 1870, by

Sharswood, J. —

It is the well-settled law of this state that the mistake of a scrivener in preparing a deed or other writing, may be shown by parol evidence, and the instrument reformed accordingly. It is but an exercise of the equity powers inherent in all our courts, from the earliest days of the province. Many of the cases are complicated with fraud either at the time of the execution of the writing or in subsequently setting it up contrary to the agreement and understanding of the parties. The cases are too numerous to cite, but I will content myself with referring to a few in which the element of fraud had no place: Hamilton v. Asslin, 14 S. & R. 448; Gower v. Sterner, 2 Whart. 75; Farmers’ and Drovers’ Bank v. Fordyce, 1 Barr 456; Chalfant v. Williams, 11 Casey 212. The English cases are all examined, with his usual ability, by Chancellor Kent in Gillespie v. Moon, 2 Johns. Ch. 585, and the rule fully established that equity relieves against a mistake as well as against fraud. In Watts v. Bullas, 1 P. Wms. 60, where I. S. made a voluntary conveyance to his brother by the half blood, which was void and defective at law, Lord Keeper Wright was of opinion that as the consideration of blood would at common law raise an use, so would this imperfect conveyance raise a trust in respect of the consideration of blood, and consequently ought to be made good in equity, and in the same case the Master of the Roíls is reported to have said that a devise of a copyhold without a surrender ought to be made good for grandchildren as well as children, an opinion concurred in by Lord Harcourt in Freestone v. Kant, 1 P. Wms. 61, n. Some doubts have bee. thrown upon the authority of this case because later equity cases have confined the interference of that court in supplying defects in the execution of powers to creditors, wife and children. But Chancellor Kent cites Watts v. Bullas with apparent approbation, 2 Johns. Ch. 599; and our courts certainly will not distinguish between children and grandchildren in the exercise of the equitable power of correcting a plain mistake in a conveyance intended for their benefit, especially when it is for the purpose of rendering valid and effectual what would otherwise be void for informality. The natural affection of grandparents is generally as strong as that of parents, and the Act of Assembly of June 13th 1836, § 28, Pamph. L. 547, has recognised the closeness of this relation by imposing upon the parties the reciprocal obligation of maintenance.

The learned judge in the court below did not deny this, for he admitted the evidence offered to show the mistake: the deed for the other farm and the testimony of the scrivener; but he thought, after having heard it, that it was not enough to be submitted to the jury. In determining whether he was right in this we must consider what was the mistake alleged. It was not a mistake in the grantees. It may be admitted that the evidence of any mistake as to them failed* entirely. But the attempt was to show that the words “ said heirs” had been introduced into the consideration clause for the words “his grandchildren” by the mistake of the scrivener. Both deeds were drawn by him at the same time, and* as he testified, under the same instructions. When we look at the expression of the consideration it would scarcely seem to need the testimony of the scrivener to prove that it was a mistake. Mistakes are sometimes so apparent on the face of an instrument that the courts will construe the instrument as it ought to have been drawn. What natural love and affection could Andrew Lantz feel for the heirs of his son, if these words are to be construed in their technical sense ? It is very plain that he meant children, though a court might not feel itself in this case at liberty to have said so without some extrinsic evidence. No use could be raised on such a consideration. The words include not only the whole line of the son’s descendants but his remote collaterals, many of whom might not even be of the blood of the grantor. It would not require much evidence to satisfy the mind that “ his said heirs” was a mistake in that place. Free as the courts have been in admitting parol evidence to correct mistakes, that liberality has been more particularly exercised in reference to tbe statement of tbe consideration not only in correcting wbat is wrong but in inserting wbat bas been omitted: White v. Weeks, 1 Penna. R. 486; Jack v. Daugherty, 3 Watts 151; Hayden v. Mentzer, 10 S. & R. 329; Strawbridge v. Cartledge, 7 W. & S. 394. It is plain, then, upon the testimony of tbe scrivener, that when, in explaining bis intentions, Andrew Lantz spoke of bis grandchildren — named them over and counted them — and called them Andrew’s heirs, be referred to them as tbe objects of bis love and affection, which was tbe moving cause of the gift be was about to make. This is no way lessened by bis insisting that tbe grant should be made to tbe heirs of bis son, because be thought that word necessary to include those who might thereafter be born as well as those then living. We think the learned judge was in error in taking the case from the jury. As a chancellor it ought to have satisfied him if the jury believed it. If the consideration clause in the deed is reformed so as to read “ for the natural love and affection he hath for his grandchildren,” it would be a valid conveyance, according to Huss v. Stephens, 1 P. F. Smith 282, and Stephens v. Huss, 4 Id. 25. The only error assigned is to the charge of the court in withdrawing the evidence of mistake from the jury, and we are not, therefore, required to re-examine the grounds of the original decision upon the deed now in question in Morris v. Stephens, 10 Wright 200.

Judgment reversed, and venire facias de novo awarded.