Doyle v. Hollenback

Opinion,

Mr. Justice Paxson:.

This case can be briefly disposed, of, notwithstanding the voluminous character of the record. It is sufficient to state our conclusions, without an extended discussion.

The main object of the bill was to reform the deed from John Welles Hollenback to Edwin S. Osborne, trustee, dated August 30, 1873. With the failure to sustain this branch of the case the other prayers for relief necessarily fall.

It is a familiar rule in equity that a deed can only be reformed for fraud, accident, or mistake. There is not, within the four corners of this bill, an averment that there was either fraud, accident, or mistake .in the making of this deed, nor anything approaching it. Upon this point the master says: “ It is not necessary that fraud or mistake should be alleged in totidem verbis; the charge may be substantially made by stating the facts from which the fraud or mistake would be necessarily implied: ” citing Grove, Trustee, v. Reutch, 26 Md. 367, and Camden R. R. v. Stewart, 3 C. E. Greene, 346. If we concede the correctness of this position it does not help the case. There are no facts stated from which the fraud or mistake can be necessarily implied. They are at best weak and inconclusive, and it cannot be truly said that the facts stated in the bill necessarily imply that John Welles Hollenback intended to convey a fee and his omission to do so was the result of a mutual mistake. This defect in the bill was taken advantage of by demurrer, which the court below overruled. We are of opinion that this was error, and that the defendants below were entitled to judgment upon the demurrer.

If, however, we treat the bill as amended, and the necessary averments added, the plaintiff would be in no better position, for the reason that the case fails utterly upon the proofs. The agreement of May 16, 1873, was entered into in settlement'of a pending action of ejectment in which John Matthias Hollenback was plaintiff and John Welles Hollenback defendant. This agreement was executory, and when" the parties came to consummate it, they had the right to make any modification of it they saw proper. At that time it concerned no one but the contracting parties, and was absolutely within their control. The deed from John Welles Hollenback to Osborne, trustee, .was made and delivered in pursuance of the agreement of May 16, 1873, and in compliance therewith. It was accepted by the grantees, 'and we must presume, in the absence of clear proof to the contrary that the agreement was merged in the deed. This transaction was not done hastily, nor in a corner. On the contrary, the deed was submitted to learned counsel, and was in the hands of John Matthias Hollenback for weeks for examination prior to its execution and delivery. It passed through the hands of such eminent lawyers as John W- Maynard and George W. Woodward, of counsel for the respective parties. There was, therefore, every opportunity for scrutiny, and literally no room for a mistake. Under such circumstances, after the death of one of the parties had sealed the lips of the other, and the death likewise of each of the distinguished counsel named, it would require evidence of the clearest and most reliable character to move a chancellor to reform the deed. We have looked through the evidence in vain for anything upon which we could sustain this decree. The defendant, John Welles Hollenback, answers the bill most pointedly that there was no mistake; that he al ways claimed that the agreement of May, 1878, was intended to pass a life estate only; and that he refused to convey more than such life estate. In order that there maybe no mistake upon this point I quote the following extract from his answer: “ When the conveyance in execution on my part of that agreement came to be prepared, it was drawn so as to convey such life estate only. Insisting that this was the intention as well as the legal construction of the said agreement of May 16, 1873, and refusing to convey an estate in fee simple, I executed and delivered the deed mentioned in said section, on the 30th day of August, 1873, to the said John Matthias Hollenback, who retained the same for a long period of time (and, as I am advised, submitted it to his counsel for their opinion), and with full knowledge of the legal effect of the said deed, accepted the said deed, and executed and delivered to me his deed of release, dated and acknowledged October 24, 1873, and subsequently, to wit, on the 17th of December, 1873, caused all the said instruments to be recorded.”

Under the well-settled rule in equity, this averment of the answer must stand until overcome by the oaths of two witnesses, or the oath of one witness and circumstances which are, the equivalent of the oath of another witness. The learned master and the court below were of opinion that there was sufficient evidence to comply with the rule in equity and overcome the answer. Upon this point we cannot agree with them. Without going into prolix details, it is sufficient to say that we do not regard the testimony of Mr. Osborne as essentially contradicting the answer, while the circumstances relied upon for that purpose are weak and inconclusive, and do not, in our judgment, warrant the conclusions drawn from them by the master and the court below. In addition we have the fact upon this record, that in 1882, and prior to the filing of the present bill, a bill was filed against the defendant, John Welles Hollenback, to which John Matthias Hollenback and the present plaintiff were parties plaintiff, in which it was distinctly asserted and averred, not that there was a mutual mistake as to the amount of estate conveyed by this deed, but that John Welles Hollenback had always refused to convey an estate in fee to the trustee, and had claimed by the agreement that he was only bound to convey life estates. This bill was demurred to, and the demurrer sustained, with leave to amend the bill. It was never amended, but subsequently dismissed upon the application of the plaintiff Doyle, who is also the plaintiff in this bill, the court refusing to add the words, “ without prejudice ” to the order of dismissal. The defendant contends that the dismissal of that bill is a bar to this proceeding, but we are not disposed to regard it as an estoppel. It is, however, important as showing that neither the plaintiff nor John Matthias Hollenback, the other party to this agreement of 1873, asserted or claimed in 1882, that there was a mistake in the deed. On the contrary the bill asserted just what John Welles Hollenback sets up in his answer, viz.: That he had always refused to convey a fee, and that he did not consider himself bound to do so under the agreement. Thus we have both parties disclaiming any mistake, and under such circumstances it is idle for this plaintiff, a stranger to that transaction, to attempt to do so.

The decree is reversed, and the bill dismissed at the costs of the appellee.