Marks v. Taylor , 23 Utah 152 ( 1901 )

BASKIN, J.

This is an action to reform a mortgage and the sheriff’s deed made to tbe purchaser, upon the sale of the mortgaged premises.

It appears that a short time previous to August 24, 1894, Taylor Brothers, who were in the loan and insurance business, and were brothers of Thomas E. Taylor, one of the defendants, applied to one Ernest M. Eowler, who was engaged in the business of procuring loans, to procure a loan for the said Thomas E. Taylor, on the security of certain real estate in Salt Lake City; that the said Eowler then applied to the plaintiff, from whom he had previously procured loans, to make the loan requested by Taylor Brothers; that the Taylor Brothers, before the said Eowler applied to the plaintiff to make the loan, had shown him the real estate upon which the desired loan was proposed, and that the same was inclosed by an old fence, and the walls of buildings thereon-; that the said Fowler, before the loan was made went with the plaintiff upon the ground and pointed out the premises, and showed her the buildings thereon; that after the plaintiff was shown the premises she consented to make the desired loan of $3,000, and the said Fowler thereupon drew up a note for the amount and a mortgage to secure the same, ■ but instead of including as he intended, the premises pointed out to him by Taylor Brothers, and by him to the plaintiff, by mistake and oversight only a portion of the premises so pointed out were included in the description. This note and mortgage was executed and delivered to the plaintiff upon the payment by her of the said sum of $3,000.

The plaintiff testified that at the time she loaned the money she supposed she was obtaining, as security, the property that Eowler pointed out to her, and would not have made the loan if she had known, or had any reason to believe that the mortgage did not embrace the premises shown to her, and that she relied on Mr. Eowler and Taylor to see that she got what she bargained for.

It further appears that Eowler was paid a commission by Taylor Brothers; that upon default in the payment of the note being made, the mortgage was foreclosed, and the mortgaged premises were bid in by the plaintiff, and after the period of redemption had expired, a deed to her of the premises was made by the sheriff, and she took possession of the same; that the plaintiff for a long time after the foreclosure sale and after the execution of the sheriff’s deed was ignorant that the mortgage did not include all of the property pointed out to her; that afterwards the said Thomas E. Taylor made claim to the portion of the premises pointed out to the plaintiff, which by mistake and oversight was omitted from the description of the property in the mortgage, and began to tear down a building situated thereon, whereupon the plaintiff instituted this action.

The defendants do not deny the execution and delivery by them of said note and mortgage. The foregoing facts, in substance, were alleged in the complaint, and are embraced by the findings of fact of the trial court, and are fully sustained by the evidence.

A decree was made and entered in the court below, as prayed for in the complaint, and from this decree this appeal is taken.

On the direct examination of Eowler, after he had stated that he had had something to do with the making of the loan, he was asked by plaintiff’s counsel: “Eor whom were you acting in that direction ?” To this question the defendant’s counsel objected on the ground that the question called for the conclusion of the witness. The objection was overruled, and the action of the court was excepted to, and is assigned as error. The witness instead of answering the question directly stated, without further objection, the facts relating to him hereinbefore set out, and as these facts show for whom he acted, the appellants were in no wise injured.

The second assignment of error discussed in the brief of appellants, is as follows:

“That the court erred in overruling the motion of the defendants to exclude from the record all the testimony of the witness Ernest M. Powler in regard to the conversation with the plaintiff, for the reason that no testimony was offered, or introduced by the plaintiff, which tended to show that the witness was the agent of the defendants.”

No reference is made in the brief, either to the abstract or transcript where such a motion was made, and after careful search in both we have been unable to discover that such a motion was made. In the transcript, however, early in the examination of Fowler, a motion was made to strike out his testimony previously given, on the ground mentioned, but after that motion had been overruled, he was examined and cross-examined, re-examined and re-cross-examined at great length, and no motion was made to strike out his testimony given subsequent to the first motion. The trial court had not, therefore, passed upon any such motion as that upon which said assignment of error is based. However as it appears from the evidence that Fowler conducted the negotiations, procured the loan, drew the note and mortgage for the defendants, although not directly authorized to do so by the defendants, when they accepted the loan and executed the note and mortgage, they ratified Fowler’s acts, and were bound thereby as effectually, as if they had in express terms authorized him to act as their agent, and Avhatever occurred between Fowler and the plaintiff in the negotiations which resulted in the loan and the execution of the note and mortgage was a part of the res gestae, and therefore admissible in evidence.

Counsel for tbe plaintiff, asked Eowler tbe following question : “In drawing tbe mortgage did you intend to bave other property than tbat included in tbe mortgage.” To this question defendants counsel objected on tbe ground tbat it was immaterial, and assigns as error tbe overruling of this objection.

Certainly if Eowler intended to include in tbe mortgage tbe land claimed to bave been erroneously omitted and which was pointed out by him to tbe plaintiff, tbat fact was strong evidence of tbe alleged mistake. Tbe question was well calculated to elicit the facts, and was therefore proper.

The appellants also rely upon the following assignments of error:

“Tbat tbe court erred in overruling defendant’s motion for non-suit at the close of the plaintiff’s testimony for the following reasons: (a) That tbe complaint failed to state a cause of action, (b) That tbe court had no jurisdiction to grant the relief prayed for; (c) Tbat there was no sufficient evidence offered or introduced to show tbat tbe defendants were guilty of any false, or fraudulent statements, or tbat tbe plaintiff was misled thereby; (d) That there was no sufficient evidence to prove that the plaintiff, and tbe defendants either through themselves or agents were mutually mistaken in drawing tbe mortgage described in plaintiff’s complaint; (e) Tbat there was no sufficient evidence to prove that tbe plaintiff, and tbe defendants either through themselves or through their agents mutually agreed upon any contract other than that contained in the mortgage; (f) That there was no evidence offered by the plaintiff to prove that any part of the property which the. plaintiff sought to recover by a reformed decree was ever owned by the defendant; (g) That the evidence showed that the plaintiff had been negligent in not sooner discovering and asserting her alleged claim.”

In regard to assignments (a) and (b) in tbe case of Quivey v. Baker, 37 Cal. 465, tbe scrivener, in drawing up a mortgage, made a mistake in tbe description of a lot wbieli be intended to describe, by transposing tbe numbers of tbe block and range. Tbe mortgage was afterwards foreclosed, and tbe mortgagee became tbe purchaser, and took possession. Afterwards Quivey, who claimed under a chain of conveyances from tbe mortgagor, brought a suit of ejectment against tbe party in possession, who claimed under mesne conveyance from the mortgagee. The defendant set up as an equitable defense, tbe mistake in tbe description of tbe mortgage. -In tbe opinion rendered in tbe case, the court said:

“But it is said tbe mortgage can not now be reformed, because it has become merged in tbe judgment of foreclosure, and that it is not competent for a court of 'equity to reform the judgment and tbe sheriff’s deed. We have been referred to no authorities in support of this proposition, and, on principles of reason and justice, we do not perceive why a court of equity may not reform mistakes in judgments or decrees, in like manner as in written instruments. But it is said there was no mistake, either in tbe decree or sheriff’s deed, which followed the description in tbe mortgage, ■ and could not have done otherwise; and consequently there is no mistake to reform in either of them. As well might it be claimed that if there be a mistake in tbe first of a series of conveyances, which was carried out through all the subsequent conveyances, that the court could only correct the mistakes in the first deed; and that, in fact, there was no mistake in the subsequent deeds, which were correctly copied from the first, as they were intended to be. But a court of equity does not administer justice on these narrow principles. It will not only go back to the original error and reform it, but will administer complete justice, by correcting all subsequent mistakes wbieb grew out of and were superinduced by tbe first. It would be a vain thing to reform the first and perpetuate the last, by refusing to disturb it. The rule in equity is to do nothing in halves; but in proper cases, to administer a full measure of relief, so as to avoid circuity of action and promote the ends of justice.” Donald v. Beals, 57 Cal. 405.

In the chse of Born v. Schrenkeisen et al., 110 N. Y. 55, 59, the court said:

“In such a case, if, by the mistake of the scrivener or by any other inadvertance, the writing does not express the agreement actually made, it may be reformed by the court. It is only where the action is to reform the agreement itself that it is required that it should be alleged in the pleading and proved on the trial that the mistake was mutual. Where there is no mistake about the agreement and the only mistake alleged is in the reduction of that agreement to writing', such mistake of the scrivener, or of either party, no matter how it occurred, may be corrected. (Pitcher v. Hennessey, 48 N. Y. 415.)”

In the ease at bar the conditions upon which the loan was made were agreed upon by and between Eowler and the plaintiff, and the evidence shows beyond doubt, that it was agreed that the loan should be secured by a mortgage upon the premises pointed out by Eowler to the plaintiff, and that Eowler, .in drawing the mortgage, by mistake omitted part of the premises which it was intended should be included therein.

In the case of Smith v. Jordan et al., 12 Minn. 264, 270, the court said that, “Whether the error in a written contract is the result of intentional or unintentional misstatements of the defendants is immaterial, for a court of equity has power to correct it as well in the former as in the latter case. * * * The charge here is that the agreement of the parties was not correctly reduced to writing; that the error is the result of fraud or mistake.”

In the case at bar the evidence clearly shows that the error in the mortgage resulted from mistake and not from fraud.

It is clear that the complaint stated a cause of action, and that the court below had jurisdiction to grant the relief prayed for.

Assignments (c) (d) and (e) we can not consider because the particulars in which the evidence is insufficient are not specified in the exceptions as required by sec. 3284, R. S.; Van Pelt v. Park, 18 Utah, 141.

In regard to assignment (f) the defendant, Thomas E. Taylor testified, as follows:

“I obtained the title to the south five rods of this ground several years after I obtained the title to the north five rods. In the beginning I owned 26 1-4 feet fronj; and five rods deep only, my next purchase was the four by five rods in the rear, which would include all the ground described in plaintiff’s complaint, except the entrance to the stairway.”

This defendant, in his answer, did not disclaim title to any portion of the.premises described in the complaint.

Assignment (g) is not supported by the evidence.

There are several assignments based upon alleged insufficiency of the evidence to support certain parts of the findings. The particulars, in which the evidence is insufficient, in these respects, are not specified. However, we are of the opinion that the findings are supported by the evidence.

There are some other assignments of minor importance, which it is not necessary to specifically pass upon. There is no reversible error appearing in the record.

It is ordered that the judgment of the court below, be affirmed, with costs.

Miner, G. J., and Barich, J.} concur.