Browneller v. Cole

OPINION

By GUERNSEY, J.

The priority of the plaintiff’s mortgage in point of time and of record, is conceded by the parties, and the sole question raised by the pleadings and the evidence is whether the plaintiff under the facts of the case, is entitled to have his mortgage reformed as against the defendants so as to correct the description to conform to the description in the deed from Kiene and his wife to the defendant Irvin H. Cole and Edna Schwartz Cole.

“The cause of the failure of a 'written contract to express the real agreement'between the parties is, in the absence of fraud, not material. The mistake may be rfiade by the parties themselves or by the scrivener who draws the instrument.” ■ ■

23 R.C.L. page 321.

“Reformation may be had not only; in case where the mistake consists in the omission or • insertion of words- or clauses contrary to the intention of the parties, but in cases where the parties understoqd what language was contained in the deed, mortgage or contract, if they believed the description corresponded . with the actual boundaries intended and were mistaken therein.”

23 R.C.L. page 335.

The evidence in the case at bar conclusively shows that the parties to plaintiff’s mortgage intended that the description therein should be identical with the description in the deed under which the mortgagors held the property, and whether the error .in the description resulted from, the mistake of the parties or from the mistake of the scrivener, is- immaterial, as the mistake was of such character as will be corrected by a court of equity insofar as the parties to the instrument,, are concerned, and consequently there can. .be no question as to the right of the plaintiff to have reformation and foreclosure as against the defendants Irvin H. Cole and Edna Schwartz Cole -the mortgagors.

There remains to be determined the question as to whether the plaintiff is entitled to such reformation as against the defendant Mrs. J. J. Cole, the subsequent mortgagee.

The recital' in plaintiff’s mortgage to the effect that the note secured thereby represents the balance of the purchase price for said premises, might alone be sufficient to place a subsequent mortgagee on inquiry as to the correct description of the premises covered by the mortgage and might operate as a reference to the description contained in the deed under which the mortgagors held the premises, as purchase money morfc- . gages exist only where the premises covered thereby are identical with the premises to the purchase of which the purchase money is applied. But in the case at bar it is unnecessary to decide, and we do not decide, whether such reference amounted to notice to the subsequent mortgagee, of the description contained.in the deed being the .correct description of the premises covered by plaintiff’s mortgage, as the mortgage to the defendant Mrs. J. J. Cole. (Olive B. •Cole) in itself contained notice of the existence of plaintiff’s mortgage on the premises mortgaged to her through .the exception clauses hereinbefore set forth.

The defendant Mrs. J. J. Cole was therefore charged with actual notice at the time she took her mortgage, that the mortgage •held by the plaintiff was intended to cover the premises described in her mortgage, ■and consequently that any variance in the description of the property in plaintiff’s mortgage from the correct description contained in her mortgage was a result of a mistake of the parties. As she was charged with notice of such mistake, this case comes within the rule announced in the syllabus of Strang v Beach et, 11 Oh St, 283, as follows:

“Where a mortgage of real estate has been duly executed and recorded, a mistake •in the attempted description of the mortgaged premises will be corrected in equity, not only as against the mortgagor, but also-as against attaching creditors and judgment creditors of the mortgagor and purchasers under them with notice of such mistake.”

The plaintiff therefore is entitled to have his mortgage reformed as against all of the defendants, by correcting the description therein to conform to the description in the deed to said premises under which the mortgagors claim title, and as reformed, foreclosed under decree finding the mortgage on the whole of said premises, as correctly described, superior to the mortgage lien of the defendant Mrs. J. J. Cole (Olive B. Cole) thereon. . .

This conclusion is in accord with the equities of the case as the plaintiff receives the benefit of the mortgage for which- he contracted and the defendant Mrs. J. J.Cole receives the benefit of the mortgage for which she, as shown by her own mortgage, contracted, (that is, a mortgage on the premises described in her mortgage subordinate to the mortgage of plaintiff), and is pot deprived of any right to' which she is equitably entitled, but is only precluded from receiving an undue advantage by reason of the mistake in the description of the premises in plaintiff’s -mortgage.

The conclusion reached -in this case is not in conflict with the decision in the case of German National Bank v Bode, Guardian, 5 O.C.C. (N.S.) page 30, as that decision relates to the rights of creditors without knowledge of mistake in' description. Inferentially, that decision is an authority for the position we. have, taken, as in the opinion the case is distinguished from Strang v Beach, 11 Oh St 283, above referred to, by reason of the fact that in the Circuit Court case there’was a finding that the creditor had no knowledge of any mistake.

■ The cases of Bloom v Noggle, 4 Oh St 45, and Irwin v Shuey, 8 Oh St 509, are not in conflict with the .views expressed by us, as the Bloom case relates to the specific performance of an • agreement to execute a mortgage, and the Irwin case relates to an instrument not properly executed ás a mortgage, because not under seal; and>-'the instrument under consideration in this case is not an agreement to execute .®, mortgage nor a defectively executed mortgage, but a mortgage properly executed in every respect, except as to the description :of the property contained in the mortgage,.' and also properly, recorded.

Decree will therefore be entered for reformation and ..foreclosure in • accordance with the views hereinbefore expressed.

KLINGER, J, concurs.. CROW, PJ, dissents.