Mikesell v. Wehrle

Opinion by

Henderson, J.,

' The learned trial judge found that the evidence in this case was sufficient to justify the conclusion that in the execution of the deed from the plaintiff to Moore the grantor was deceived and was led to believe that the coal reserved in his option was also reserved in his deed. The soundness of this conclusion becomes apparent on an examination of the evidence. It is clearly shown that the plaintiff intended to and, in his option, did reserve “25 to 30 acres of coal in the tops of the hills” and that this was well understood by Moore; that the deed to the latter and by him to Wehrle were prepared by their attorneys under instructions from the defendants in which deeds the .reservation was described as the “seam or bed of coal which may be in, upon or under the above described premises known as the Pittsburgh -seam” and that at the time the plaintiff’s deed was executed and delivered it was represented to him that the description in the deed covered the same body of coal referred'to in the optional agreement and secured to the plaintiff the same title which he reserved under that agreement. It was proved and is admitted by Wehrle that there is no Pitts-burg seam of coal on the plaintiff’s farm and the reservation in the deed by its terms did not secure any coal to the plaintiff. To hold that Moore could assert a title to all the coal on the plaintiff’s farm would be to countenance a gross injustice and even if the parties were merely mistaken in supposing that the vein of coal which was intended to be excepted from the grant was the “Pittsburgh vein” the plaintiff would be entitled to relief as against Moore. A mutual mistake in naming the excepted body of coal would not prevent the plaintiff from asserting his title to that which was in contemplation by the parties and intended to be covered by the exception. But we think the court should have gone further and held that the defendant, Wehrle, was alike chargeable with the consequences of the change of the terms of the exception in the deed from those used in the optional agreement. Wehrle knew that the plaintiff had reserved twenty or thirty acres of coal in the upper vein and made him an offer therefor. His contract with Moore was for the payment of $5.00 an acre more than the latter had agreed to pay to the plaintiff. The deeds from Mike-sell to Moore and from Moore to Wehrle were prepared under the direction of Wehrle by his attorneys who were also the attorneys of Moore. The money paid to Mikesell at the time his deed was delivered was paid directly by Wehrle through Mr. Geib, a justice of. the peace. No money was paid at the time to Moore. Geib was employed by Wehrle to go to Mikesell’s house with Moore to take Mikesell’s acknowledgment of his deed and to pay him the purchase money then due. He was acting wholly in the interest of Wehrle in the transaction. It was understood by the parties present at the time when Mikésell’s deed was acknowledged and delivered that the coal excepted and reserved therein was the same which was described in the optional agreement and Geib paid Wehrle’s money to Mikesell for the deed to Moore' on that understanding. Moore was merely a conduit through which the title passed from Mikesell to Wehrle. He had contracted with Wehrle to sell the coal secured under the option before the Mikesell deed was executed, and the transaction as closed by Geib, Wehrle and Moore was in fact in the interest of Wehrle who was represented by Geib. The deeds of Mikesell to Moore and from Moore to Wehrle were delivered to the latter at the same time and the same day they were executed. There was some contradiction of testimony as to whether the reservation in the deed was read to Mikesell before he executed the conveyance, but there is no dispute about the fact that the coal reserved was the vein of coal above the house known both by Moore and Mikesell which was said to be the Pittsburg vein. It is now contended by Wehrle that all the plaintiff secured by his reservation was the Pittsburg vein and that there is no Pittsburg vein on the farm and the plaintiff has been notified not to mine coal on the vein to which he alleges the reservation applies. The evidence makes it very clear in our view of the case that Wehrle is chargeable with the consequences of the change in the description of the exception and reservation in the deeds and that whether this change was the result of a deception practiced or a mutual mistake as to the name of the vein reserved, the plaintiff is entitled to have the reservation carried into the deed in the form in which it existed in the contract of option. The status of the parties will thereby be set forth -in the deed as intended and expressed in the contract and on this foundation their rights may be asserted and defended.

The decree is reversed and it is now ordered and decreed that the bill be reinstated, that the deed from Daniel Mikesell to William M. Moore dated January 16, 1905, and the deed of the same date from William M. Moore and Mary A. Moore, his wife, to R. W. Wehrle be reformed by inserting in each of the said deeds instead of the words “ excepting and reserving to the parties of the first part, their heirs and assigns forever, any and all of that certain seam or bed of coal which may be in, upon or under the above described premises known as the ' Pittsburgh Seam ’ ” where the same appears in the said deeds the words following: “excepting and reserving 25 to 30 acres of coal in the tops of the hills and containing 104, one hundred and four acres, more or less’’ and that the.record of the said respective deeds in the office of the recorder of deeds of the county of Indiana be amended in conformity with this decree. It is further ordered that the costs of this appeal be paid by the appellees.