Finishing & Warehouse Co. v. Ozment

Walker, J.,

(after stating the case): The case made out by the plaintiff and reinforced by the testimony of the defendant appeals strongly to the conscience of the court, and it would be strange indeed if any principle of equity could be successfully invoked which would cause us to withhold from the plaintiff the relief which be seeks in this action and enable the defendant to retain a part of the Combs lot which it clearly appears be did not buy and for which, of course, be has paid nothing. He is insisting upon bis strict legal right and the advantage which be has gained by the miscarriage of the parties in writing their real agreement in the deed.

It is true that the defendant starts in the case with a technical advantage, for the law always presumes, nothing else appearing, that a deed has been correctly written and that it is the true expression of the intention and agreement of the parties, and it must stand as it was prepared and executed by the parties, unless this presumption of the law is in some way rebutted, in an action brought to reform the deed, the burden being upon him who seeks to correct it to show by strong and convincing proof and in the clearest and most satisfactory manner that there was a mutual mistake and that the alleged intention of the parties, to which be desires it to be conformed, continued concurrently in the minds of both of them down to the time of its execution, and be must also show precisely the form to which the deed ought to be brought. This is a familiar principle. Bispham’s Eq., Sec. 469.

It has been said that this rule is founded upon the salutary principle that the parties have agreed upon the writing as the evidence of the contract between them and as the memorial of their agreement if .any dispute should arise as to its terms and that the law will not change it “until by a weight of proof greater than itself a court of equity, in the exercise of a very high and delicate jurisdiction shall correct it. Ely v. Early, 94 N. C., 8. Mr. Adams, in referring to this jurisdiction of a court of equity says: “In the second case where the instrument purports to carry into execution an agreement which it recites, and exceeds or falls short of that agreement, there is no difficulty in rectifying the mistake; for then there is clear evidence in the instrument itself that it operates beyond its real intent. If, however, there is no recital of any agreement, but a mistake is alleged, and extrinsic evidence tendered in proof that it was made, the limits of the equity for correction are more difficult to define. The prima facie presumption of law is that the written contract shows the ultimate intention, and that all previous proposals and arrangements, so fas as they may be inconsistent with that contract have been deliberately abandoned. It seems however that the instrument may be corrected, if it is admitted or proved to have been made in pursuance of a prior agreement, by the terms of which both parties meant to abide, but with which it is in fact inconsistent; or if it is admitted or proved that an instrument intended by both parties to be prepared in one form, has, by reason of some undesigned insertion or omission, been prepared and executed in another.” Adams Eq., p. 343; star p. 169.

Put when the party who seeks to rectify the instrument produces evidence of any material mistake which is clear, strong and convincing, there is no good reason, and surely there ought not to be any, why a court of equity should not exercise its powers, according to established principles in the correction of the mistake. The remedy by reformation is obviously one which is necessary to the complete and exact administration of justice, and which moreover, can be attained by equitable procedure alone.

“Equity will reform a written contract or other instrument inter vivos where, through mutual mistake, or the mistake of one of the parties, induced or accompanied by the fraud of the other, it does not, as written, truly express the agreement of the parties.” Eaton on Eq., Sec. 618.

In the case of Newsom v. Bufferlow, 16 N. C., 381, this court recognized and enforced the right to have a deed corrected upon the ground that it was an executed contract and the plaintiff therefore had no remedy at law, as he might have in the case of some executory contracts, and further that unless a court of equity give relief the plaintiff would have no redress, and the remedy will be-applied where a clause is either inserted in a deed, or is omitted, through fraud or mistake. In that case the court refers with approval to Gillespie v. Moore, 2 Johns., Ch. 585; 7 Am. Dec., 559, in which it appeared that a deed was executed by mistake for 250 acres of land, when it ought to have been for 200 acres only. The court permitted parol evidence to prove the mistake although it had been positively denied in the answer. It is needless to pursue this discussion further for this court has repeatedly held that the jurisdiction of a court of equity to correct mutual mistakes in deeds and like instruments, when such mistake is admitted or distinctly proven, is clear and unquestionable. Morisey v. Swinson, 104 N. C., 555; Kornegay v. Everett, 99 N. C., 30.

In this connection we will consider the third and fourth assignments of error, that is the refusal of the court to dismiss the complaint under the statute, at the close of the evidence, and the refusal to charge that there was no evidence of mistake. The court properly refused both requests. The evidence is abundantly sufficient to sustain plaintiff’s allegation of a mistake. It was clear, strong and convincing in character, and the court, in its charge, instructed the jury that plaintiff must have satisfied them by that kind of evidence of the mistake, and unless it had done so, the jury should answer the issue ffio’. How could the evidence be less than strong, clear and convincing when the plaintiff’s witnesses testified positively to the mistake and also to the admissions of the mistake by the defendant, which admissions he would not deny when he took the stand as a witness and testified in his own behalf.

But the defendant complains that the court did not submit the proper issues, although requested to do so. We think the issue submitted was sufficiently comprehensive in its scope to enable the defendant to present his defense in all its aspects, and it seems that by appropriate-prayers for instructions he fully availed himself of this opportunity and privilege, and he suffered no prejudice by the action of the court. Ratliff v. Ratliff, 131 N. C., 435. The prayers for instructions were refused, to be sure, but not because they did not come within the scope of the issue submitted to the jury, but because they were not proper in themselves and were not applicable to the peculiar facts of the case. Besides, the second, third and fourth issues as tendered by the defendant should not have been submitted because they were irrelevant to the facts of the case. The first issue tendered was not broad enough, and as far as it did go was embraced within the issue submitted by the court. The testimony of Lindau, as to the intention of the parties, was clearly competent. The question in dispute was as to the intention of the parties in making the deed and any testimony tending to show what it was, especially when it came from one of the parties to the transaction, who must have known that intention, was admissible to show what the parties intended to do and that the deed did not correctly express the agreement, which was the very fact in issue.

The defendant’s first and third prayers for instruction were given by the court and the second and fourth refused. We can see no error in this ruling. This is not a case where the principle invoked by these prayers has any application. Both parties were laboring under a wrong impression as to the dimensions of the store-house lot. 'It is clearly established that the parties intended to convey that lot, with reference to its particular boundaries, and no more land than it embraced, and we do not think the mere fact that it was described as containing 50 by 150 feet was any evidence of negligence on the part of the plaintiff which is sufficient to deprive him of equitable relief by the correction of the mistake. It is just that kind of a case where the parties have been thrown off their guard, and for that reason have failed to inform themselves, by a clear misapprehension of both of them as to the dimensions or the boundaries of a lot which was sold by. one and bought by the other. The case Pugh v. Brittain, 17 N. C., 37 it seems to us, effectually disposes of this exception. In that case the deed described the land conveyed by metes and bounds, and by mutual mistake of the parties it covered land which the vendor did not intend to sell nor the vendee to buy. In reference to the plaintiff’s right to a correction of the deed the court said: “It is therefore the opinion of the defendant that the plaintiff conveyed land to him, which neither he nor his brother believed was included in the boundaries set forth in the deed, and which they both knew belonged to another person. The bill is filed to rectify the mistake. But the defendant insists, that as the parties were ignorant of the lines and had not the means of ascertaining them by a survey, the vendor meant to sell and he to purchase all the land described in the deed to the elder Pugh, grandfather of the plaintiff — that he looked to the paper title only. If a person was purchasing another’s interest in land in no respect located, there might be some ground for such a claim. But in this case, the parties bad a knowledge of the land sold, but not of its particular boundaries-; for the defendant describes it as low, flat land uncleared and covered with water in the winter. And neither party ever dreamed that Chamberland’s land was part of it. For it seems that Bartlett, wbo claimed under Chamberland, was in actual possession of tbat land."

But if plaintiff bad been negligent, it does not follow that be has lost thereby bis right to relief. “Even negligence may not in all cases close the doors of Chancery against a complainant; for if the position of either party bad not been changed in consequence thereof relief may be granted.” Bispham’s Eq., Sec. 192. What change prejudicial to the defendant has taken place since the deed was made ? There has been none, except the outlay for improvements or better-ments and the plaintiff agreed to repay to him the amount so expended. When be made these improvements be knew according to his own testimony and the admissions which were made by him, that he had not purchased any part of the Combs lot, and therefore made the improvements, it would seem, with full notice of the plaintiff’s equity. The plaintiff will no doubt allow him for the money actually expended in the way of betterments, but that is now a matter which must be settled between them. We merely suggest it as a proper course to be taken.

Upon a careful consideration of the whole case we can find no error which was committed by the court in the trial below.

No Error.