Roycroft v. Jordan

McCLELLAN, J.

On May 24, 1900, John Jordan owned the N. W. 14 of the S. E. 14 °f section. 4, township 21, range 4 W., in Shelby county. On that date Jordan sold this 40 to J. N. Campbell, A mutual mistake was made by them in that the 40 was described in the deed to Campbell as being in the S. W. % of the section mentioned. On March 26, 1906, Jordan again sold the 40 to W. E. Harrison, and executed to him a conveyance in which the 40 was correctly described. On October 7, 1907, Campbell sold the 40 to the complainants (appellants), and in this conveyance the land was correctly described. It appears that neither Campbell nor complainants knew of the error in description in the deed of Jordan to Campbell until after the execution and delivery of the deed from Campbell to complainants.

This bill, by the grantees of Campbell, against W. E. Harrison, Campbell, and Jordan (Campbell dying pending the suit), seeks thé reformation and correction, in respect of description, of the Jordan deed to Campbell, and bears the averment that Harrison had notice or knowledge of the mutual mistake in the description in the Jordan-Campbell deed before he purchased the 40 from Jordan in March, 1906. The court below concluded that the stated controlling allegation of knowledge or notice on the part of Harrison was not sustained in the evidence.

We have carefully reconsidered the entire evidence on this issue, and so with the aid of the thorough discussion afforded by the respective briefs of the solicitors. We are unable to affirm that the conclusion prevailing below was erroneous. The evidence on this matter of knowledge or notice on the part of Harrison is very conflicting, incapable of being harmonized in any degree. The burden was assumed by the complainants to sustain the affirmative allegation. This we cannot say they have done. The decree is affirmed.

Affirmed.

Dowdell, C. J., and Sayre and Somerville, JJ., concur.