Butler v. Barnes

A mistake which justifies the interference of a court of equity, is defined by the civil code of New York as follows: — "Mistake of fact is a mistake, not caused by the neglect of a legal duty on the part of the person making the mistake, and consisting in, 1st, an unconscious ignorance or forgetfulness of a fact past or present, material to the contract; or, 2d, belief in the present existence of a thing material which does not exist, or in the past existence of such a thing which has not existed." This definition is endorsed by Mr. Pomeroy as "both accurate and comprehensive." 2 Pomeroy's Eq., § 839.

Again: "If a mistake is made by one or both parties in reference to some fact which, though connected with the transaction, is merely incidental, and not a part of the very subject matter or essential to any of its terms; or if the complaining party fails to show that his conduct was in reality determined by it; in either case the mistake will not be ground for any relief, affirmative or defensive." 2 Pomeroy's Eq., § 856.

I presume that it will be conceded that such is the law of this state. A court of equity will not stoop to correct an immaterial mistake. My first inquiry then is, was the mistake in this case a material one? Did the parties sell and purchase because of their belief that the front line extended to the stake? In other words does it distinctly appear that there would have been no sale had the parties known that the front line fell six and one half inches short of the stake? There can be but one answer to all these questions, and that a negative one. The finding is ominously silent on this subject. Not only is an express finding of materiality wholly wanting, but there is nothing in the record from which it can be inferred. It will be remembered that the question is, not whether the triangular piece six and one half inches in front and running to a point one hundred feet back, is now important to the plaintiff after constructing his building partly thereon, but did Barnes and Riggs regard it as important in 1872 that the real corner should be at the stake? There is no finding that they did and there can be no inference to that effect. Riggs purchased a piece of land with a frontage on the street of thirty-three feet. That quantity of land he received; at least that must be presumed for our present purpose, as there is nothing in the case indicating that he did not. If therefore Riggs received all the land that he purchased, and all that he supposed that he was to receive, there is absolutely no ground on which it can be claimed that he purchased it because he thought the stake indicated the true corner, and that he would not have purchased had he known that the corner was six and one half inches further south. This alone I regard as a conclusive answer to the plaintiff's case.

The alleged mistake was not in drafting the deed. That instrument contained nothing which the parties intended it should not contain, and omitted nothing which they intended should be inserted. Had there been a material mistake of that description a court of equity might have corrected it by reforming the deed. But the deed as it stands describes the land which the grantor owned, and which was intended to be conveyed by it, correctly. True, there was a mistake, but it was dehors the deed. It was in locating one corner of the premises. Obviously such a mistake is not to be corrected by any change in the deed, especially a change which will make it include land which the grantor did not own, and the title to which cannot be affected by it. The plain common sense method of correcting such a mistake is to ascertain and correctly locate the premises. Then, if the grantee fails to get what he expects, and what he wants, his remedy is an application to set aside or cancel the deed and restore to him the consideration paid.

The change asked for will not effectuate the intention of the parties. It will inevitably lead to results not intended and not contemplated. The deed was intended to convey the land and only the land which the grantor owned. Changing it so as to include land which he did not own is futile It is said that by pointing out the stake as the corner the parties virtually agreed that the deed should so describe the land, and therefore that the parties intended to deed to the stake. True, in one sense, and not true in another. It clearly appears that they intended to hound the premises north by the O'Connor line. That was the primary and principal intention. The intention to deed to the stake was secondary and subordinate; it was contingent upon the supposition that that was identical with the O'Connor line. Thus there were, so to speak, two intentions; one absolute, to convey to the true line wherever that might be, and the other contingent, to convey to the stake, provided that indicated the true line. The absolute and only real intention has been effectuated by the deed as it is; the contingent one, by reason of the failure of the contingency on which it depended, ceases to be of any consequence. An intention depending upon a contingency which does not exist, and which never can exist, is, in legal contemplation, no intention at all. Legally speaking then, there was but one intention, and that was to convey only the land which the grantor owned.

The court, as it seems to me, now attempts to give effect to what was a secondary and contingent intent, and which is now no intent at all — an impossible intent, by changing the deed so as to curry a mistake, made during the negotiations, into that instrument, when the parties themselves had consciously or unconsciously rectified the mistake in their deed. Thus such a mistake is unduly magnified as of more importance than the real agreement of the parties as truly expressed in their deed. Courts of equity do not reform deeds to give effect to mistakes. It is in effect enforcing an agreement founded in a mistake; and the mistake is of such a character that a court of equity, were the circumstances slightly changed, would unhesitatingly annul the agreement. That is hardly reformation. Courts of equity do not reform written instruments to give effect to mistakes, or agreements resulting therefrom, but to rectify them in cases where injustice would otherwise be done.

Let us pursue this thought a little further. I take it that it is a sound proposition that a court of equity will not lend its aid to give effect to an agreement founded in and resulting wholly from a mistake of fact, unless it clearly appears that the parties after having actual knowledge of the facts would have entered into or have ratified the agreement. Any substantial doubt on this point should lead the court to refuse its aid. How is it in this case? The mistake was not discovered until many years after the deed was given, and was not known with certainty until the determination of the case of Root v. Butler. Since then no contract has been made and none has been ratified. Indeed no such fact is claimed in the case, and the finding nowhere intimates that any such fact exists.

From what I have already said it will not escape the notice of the profession that this is not an ordinary case of a reformation of a written instrument. It is rather in the nature of an action for a specific performance. It is in fact an action to compel Barnes to perfect a defective or incomplete performance. The deed as it is embraces no land north of the O'Connor line. The object is to extend its operation beyond that line. The case therefore stands upon the same principle that it would if it was a suit to compel Barnes to give an independent deed of that strip of land. The circumstances and results may be different; but the essential principles upon which courts proceed are the same in the two cases. In either case the important questions are, has there been a valid agreement? and does justice now require that that agreement shall be performed? I need not repeat the arguments here. An agreement based upon a radical misconception of facts can rarely be a valid agreement. The non-existence of an assumed fact, the assumption being vital to the agreement, is an insuperable objection to a decree for a specific performance. Justice cannot require the performance of the agreement for two reasons: first, there is no valid existing agreement, and second, the agreement is of such a character that specific performance is impossible. These propositions will not be denied: — 1st, that the agreement to convey to the stake was founded in the mistaken belief that Barnes owned to the stake; and 2nd, that any decree which the court may pass cannot possibly affect the title to the land. I cannot understand upon what principle, or for what purpose, a court of equity can now interfere, unless it is in some way to take into its jurisdiction the matter of damages. I had supposed that courts gave damages generally in such cases only as incidental to some distinctively equitable relief. Mr. Pomeroy, (3 Eq., § 1405,) says: — "The contract must be free from any fraud, misrepresentation even though not fraudulent, mistake or illegality." Again, in the same section: — "The contract must be such that its specific performance would not be nugatory. Although the contract by its terms can be specifically enforced, the defendant must also have the capacity and ability to perform it by obeying the decree of the court. It must be such that the court is able to make an efficient decree for its specific performance, and is able to enforce its decree when made." And in a note the author says: — "If the defendant is totally unable to perform because he has no title at all, or a title completely defective, the remedy will not be granted."

In vol. 1, § 237, the same author says: — "If a court of equity obtains jurisdiction of a suit for the purpose of granting some distinctively equitable relief, such for example as the specific performance of a contract, or the rescission or cancellation of some instrument, and it appeals from facts disclosed on the hearing, but not known to the plaintiff when he brought his suit, that the special relief prayed for has become impracticable, and the plaintiff is entitled to the only alternative relief possible of damages, the court then may, and generally will, instead of compelling the plaintiff to incur the double expense and trouble of an action at law, retain the cause, decide all the issues involved, and decree the payment of mere compensatory damages." In a note to this section the author says: — "The following rules have been established by American decisions: — If through a failure of the vendor's title, or any other cause, a specific performance is really impossible, and the vendee was aware of the true condition of affairs before and at the time he brought his suit, the court, being of necessity obliged to refuse the remedy of specific performance, will not in general retain the suit and award compensatory damages, because, as has been said, the court never acquired jurisdiction over the cause for any purpose; citing cases. A second rule is, — that if the remedy of specific performance is possible at the commencement of the suit by the vendee, and while the action is pending the vendor renders this remedy impracticable by conveying the subject matter to a bonâ fide purchaser for value, the court, having acquired jurisdiction, will do full justice by decreeing full damages; citing cases. The third rule is as follows: — If specific performance was originally possible, but before the commencement of the suit the vendor makes it impossible by a conveyance to a third person; or if the disability existed at the very time of entering into the contract on account of a defect in the vendor's title or other similar reason; in either of these cases, if the vendee brings his suit in good faith, without a knowledge of the existing disability, supposing, and having reason to suppose himself entitled to the equitable remedy of specific performance, and the impossibility is first disclosed by the defendant's answer, or in the course of the hearing, then, although the court cannot grant a specific performance, it will retain the cause, assess the plaintiff's damages, and decree a pecuniary judgment in place of the purely equitable relief originally demanded. This rule is settled by an overwhelming preponderance of American authorities." Citing a large number of authorities. Among them were Kempshall v. Stone, 5 Johns. Ch., 193; Morss v. Elmendorf, 11 Paige, 278; Milkman v. Ordway, 106 Mass., 232;Smith v. Kelley, 56 Maine, 64; Doan v.Mauzey, 33 Ill., 227; Gupton v. Gupton,47 Mo., 37; McQueen v. Choteau's Heirs, 20 id., 222. An examination of the authorities satisfies me that this is a case in which a court of equity ought not to grant the relief prayed for; also, that the court having acquired no jurisdiction for granting equitable relief, cannot grant relief by giving pecuniary damages.

I do not think that the practice act has any application.