Summary
Appeal from the chancery court of Tippah county.
Hon. J. T. Blunt, chancellor.
Suit by S. M. Richardson and others against Mary J. McAllister. From a decree for complainants, defendant appeals.
See, also, 57 South. 547.'
The opinion of the chancellor, which stated the facts, is as follows:
“This bill was filed asking the correction of an alleged misdescription of land numbers, and to quiet title to same.
“Mrs. A. E. Ford died in the year 1907, leaving a sister, Mrs. Mary McAllister, the defendant herein, as her only heir at law. It is complained by complainants that before her death Mrs. Ford made and delivered to them a deed conveying all her real estate, but by a mistake of the scrivener the wrong land numbers were written in the deed. The defense denied that any deed was ever made, or, if made, it was never delivered, hence no conveyance. They further say, if the deed was made, it was a testamentary document, and, being voluntary and without consideration, is not subject to correction, but must stand as written.
“I think the evidence establishes the fact that Mrs. Ford intended to convey her land to the complainants. I think, also, that it establishes that the deed was properly executed, and that the misdescription of the land was written through mistake.
“The only difficulty that I encountered was as to the delivery. The objections by defendant to the introduction of Mrs. Richardson and her husband to establish their claim against the decedent are sustained, but, aside from their testimony, prima facie Mrs. Richardson is shown to have been in possession of the land, and in no way, except by inference, has it been shown that her possession was not legal. The paper offered in connection with the deed, tending to show it was a will, cannot be considered for the reason it was never signed nor adopted by any of the parties whose names were attached.
“As to the delivery: Bartlett, who wrote the deed, says Mrs. Ford intended it to be a warranty deed from the time it was made. W. H. Foote says Mrs. Ford told him more than once that she wanted to convey her land to Mrs Richardson, and had done so. Emmett Richardson testifies that he saw the deed in his mother’s possession some months before Mrs. Ford’s death.
“As to the consideration, the deed recites on its face three hundred dollars. Leaving out Mrs. Richardson’s testimony, which is excluded on defendant’s motion, there is no proof that the consideration was not paid. Mrs. Ford had the right to place an estimate on the consideration which moved her, whether it was cash paid, services already rendered, or to be rendered. There was testimony to the effect that Richardson had helped Mrs. Ford in the past and that he would continue to do so.
“My finding is in favor of complainants, and a decree may be prepared and sent to me for signature, correcting the deed so as to insert the correct numbers of the land and also quieting the title to same, so far as Mrs. AcAllister’s claim is concerned.
“Full time will be given to-defendant’s counsel to prepare and present bill of exceptions and perfecting an appeal.
“Let the' decree be submitted to opposing counsel before being sent to me.”
We desire to discuss the errors of the trial court covered ■by the assignment of errors herein under three general propositions the last two of which are most relied upon and seriously presented to secure a reversal of the decree entered below and as warranting a decree for defendants (appellants) by this court, to wit:
First. The court erred in remanding — of its own motion, such relief not having been asked for by plaintiffs’ counsel — said cause to rule after it had been set down for hearing and fully developed by plaintiffs’ counsel, defendant excepting to such action. Second. The decree was contrary to the evidence. .Third. The decree was contrary to law governing in the case.
Of these in their sequence:
The court erred in remanding, of its own motion, said cause to rules over the exception of defendants after it was set down dor hearing and developed by plaintiffs. An examination of the record will disclose that there was no particle of testimony, other than the incompetent testimony of plaintiffs themselves, that the alleged deed was ever delivered to plaintiffs.
The action of the court below in remanding this cause to rules, on its own motion, after attorneys for plaintiffs had closed their case wholly failing to make out a case, and after counsel for defendant had moved to exclude the testimony as insufficient to warrant a decree, .was a serious abuse of judicial discretion. The most that could have been legally done would have been to allow plaintiffs, had they so requested, to dismiss their bill without prejudice. They did not ask such action and defendants should have had a decree.
Whether or not such alleged abuse of discretion will warrant a decree for defendants in this tribunal, it is nevertheless called to the attention of the court for a twofold purpose: (1) To secure an announcement that will prevent trial courts in the future from volunteering, in litigated cases, to assist one or the other of interested parties. (2) To show an insensible bias toward the plaintiffs herein which later probably dominated the judgment of the court in his findings.
Second. The decree entered below in this cause was contrary to the evidence: (1) Because the proof shows that the alleged deed is shown by the testimony to have been intended to take effect at the death of Mrs. Ford and was, therefore, an attempted will and not a deed. If it was intended as a will, it was not properly executed and is void. If it were a will, it. could not be reformed.
These three propositions are hornbook law, and this court needs no citations in support of such elementary propositions.
(2) Then even if it was intended as a deed, the evidence shows that it was never delivered to plaintiffs. Where the donor and donee reside together at the time of the gift, the rule is that possession by the doiiee at the place of their residence is not sufficient to make the gift valid. Overfield v. Sutton, 1 Mat. (Ky.) 621; Brink v. Gould, 7 Lans. (N. Y.) 425; Kelly v. Maness, 31 S. E. (S. C.) 490.
Third. The decree entered by the chancellor below was contrary to law, and the court erred in entering final decree for plaintiffs. As to the forty acres in section 8 there was no description at all; neither on the tax receipt nor in the alleged deed as written by the scrivener; the scrivener, therefore, made no mistake in describing this land, and as to said forty acres there is nothing to reform.
The only competent proof in this case touching Mrs. Ford’s action is that she showed or announced her intention to convey. No actual delivery, except such as was attempted to be shown by donee’s possession under circumstances which the law above condemns, is shown by the testimony. Therefore, no title passed. Nolen et al. v. Harden, et al., 43 Ark. 307.
In this case the court says: “If there be only an intention to giye and no delivery it will be inchoate and incomplete, however strong the expression of intention may be; and the property does not pass. One is bound by his acts, but without consideration, he is not bound to carry out his voluntary intentions, however firmly or earnestly he may express them.”
In the above ease, parenthetically, the court announced the following in reference to practice in the supreme court touching the facts in chancery causes: “In chancery causes the supreme court will, on appeal, sift the whole evidence and determine what findings of the chancellor should have been upon such of the evidence as was competent and proper; with due reference, however, to the decisions of the chancellor where the preponderance is nice.”
To divest one’s title by absolute gift requires a renunciation on the part of the donor and the acquisition on the part of the donee of all title, interest and dominion. Brink v. Gould, 43 Prac. 289; Dickescheid v. Exchange Bank, 28 W. Va. 340; Yancey v. Field, 8 S. E. (Va.) 721.
If the instrument is a deed instead of a will, our contention is that said alleged deed was never delivered during the lifetime of Mrs. Ford. Bartlett, the draftsman of the alleged deed was directed to hold and keep it until Mrs. Ford called for it, which he did for about two years, and until-he was going to leave the state of Mississippi for Missouri, when he delivered the deed to Mrs. Ford without her calling for it. The next we hear of said alleged deed, it was in the hands of Emmett Richardson, son of appellees, after the death, of Mrs. Ford, who was carrying it together with other papers to Esquire Johnson, as he said with reference to having it recorded.- He also states that he saw the said alleged deed in the possession of his mother, Aggie Richardson, about two months before the death of Mrs. Ford. Appellees and Mrs. Ford lived in the same house together. We submit that this is not sufficient proof of delivery of the deed. AH the facts and circumstances in this case positively refute the idea of the delivery of the deed to appellees. It devolves upon appellees to prove delivery of the deed. The only proof of which is the testimony of Emmett Richardson, the weakness of which we invite your attention as same appears the in record.
There was no mistake in the deed to correct. The grounds for reforming an instrument was a mistake on the part of the draftsman in writing the numbers of the land in the deed. Bartlett, the draftsman says, he called upon Mrs. Ford for her deed to copy the numbers of the land from; she asked him if a tax receipt would not answer the purpose, he replied it would. Not having one with her he stated that he would call at her house in a day or two and get one, which he did and copied the numbers of the land from the receipt into the deed, making no mistake. Nor does the prooof show any mistake in the tax receipt given Bartlett by Mrs. Ford from which to get the numbers of the land. Nor will it be permitted to show any mistake in the tax receipt, or on the part of Mrs. Ford alone, because it would be the mistake of only one party, and could not be ground for reformation, as Equity will only reform an instrument on the ground of a mutual mistake, but never upon a mistake of one party alone. There could be no mutual mistake in this case, because there existed no contractual relations between the parties to this alleged deed, in fact the grantees, appellees herein, knew nothing about said alleged deed, or her intention to make one until, according to their own testimony, about a month or two before Mrs. Ford’s death.
There has been no fraud charged in this case, no fraud proven and under the circumstances there could- be no fraud, but simply the mistake of one party shown, or attempted to be shown. A mistake sufficient to justify the reformation of a contract must be the mistake of both parties, and not that of one only. 4 Words & Phrases, 4540. Cites Dougherty y. Lyon Fire Insurance Co., 84 N, Y. Supp.10; 41 Mise. Rep. 285; Drachler v. Foote, 84 N. Y. Supp. 977-979; 88 App. Div. 270.
There must always be shown the mistake of both parties, or the mistake of one with the fraudulent concealment of the other to justify a court of equity in reforming a contract. 1 Story’s Equity Jurisprudence (10 Ed.) section 147. A unilateral mistake is not a ground for reformation. 34 Oye. 915.
The evidence falls far short of that required by law for the reformation of instruments, and there was no sufficient testimony to sustain the finding of the chancellor. Reformation of an agreement sought by reason of an alleged mistake in drawing it up- can only be had upon proof clear and free from doubt, and to the exclusion of every other reasonable hypothesis. Wherefore it is respectfully submitted that said decree should be vacated, annulled and set aside, and that this cause be reversed and remanded.
The serious questions for consideration by the court are: 1st. What land did Mrs. Ford own at the time of the execution of the deed to appellees? 2nd. Did she intend to convey this land to the appellees? 3rd. Was there.a mistake inadvertently made in writing the deed? 4th. Was the deed delivered and accepted by the grantees? 5th. Do the pleadings and evidence make a proper case for reformation?
After a brief reference to the immaterial questions raised in the briefs of Mr. Murry, and Messrs'. Fontaine & Fontaine, attorneys for appellants, we will discuss these five propositions in their order. It is urged by counsel for appellants that the chancellor erred in remanding the case for further testimony when it was first submitted. That this was a matter entirely in the discretion of the chancellor needs no argument. The fact is that after the exclusion of the testimony of both the appellees on the motion of attorneys for appellants it was the duty of the court to remand the case for further development, and it makes no difference whether this was on the court’s own' motion or on the motion of counsel for the - appellees. The criticism of the chancellor in the brief of Mr. Murry is uncalled for and unjust, and will certainly have no weight with this court. This court will pay no attention to the attempt of counsel for appellants to connect the deed of Mrs. Ford to appellees with an alleged contract which was never signed by anyone, but seems from Bartlett’s testimony to have been prepared by him “as a form” to be used in the event the parties should see proper to adopt this method, but which was never used. The chancellor correctly held that this “form” prepared by Bartlett, has nothing to do with the case. (See opinion of chancellor.) Neither is there anything in the contention of counsel that the deed in controversy was of a testimentary character. It is true that Mrs. Ford, both before and after the execution of the deed, did declare that she wanted her neice, Mrs. Richardson and her husband, to have all her property at her death, giving reasons therefor, but this was only in explanation as to why she intended and had actually executed the deed to them. It is also true that Mrs. Ford attempted to make some other form of conveyance which is not definitely described, but which Bartlett says, he wrote and submitted to Mr. Murry, an attorney at law, who advised against its execution, and that it was thereupon abandoned. It is clearly brought out, however, in all of these attempts of Mrs. Ford to dispose of her property that she intended that appellee and no one else should have her property. These immaterial and irrelevant questions having been eliminated we are brought to a consideration of the real questions involved in this suit.
First, we have already shown that the only land owned by Mrs. Ford at the time of the execution of the deed to appellee was the land conveyed by the deed of W. C. Falkner to M. E. Sanders.- Second, we have also shown that it was the clearly expressed intention of Mrs. Ford to convey this land to the appellees. Third, no matter what the testimony may show, it is certain that when Bartlett came to write the deed he unintentionally made, a mistake in copying the numbers and description from the tax receipts which were handed to him. No tax receipt has been found showing that Mrs. Ford was ever assessed with, or paid taxes on the quarter section, or the half quarter, in section 10, as described in the- deed which he wrote, nor is there the slightest indication that Mrs. Ford intended or attempted to mislead Bartlett in the preparation of the deed, but that in good faith she endeavored to convey the identical land described in the deed from Falkner to Sanders, and that it was not her fault that the land was not properly described, but that it was due to the carelessness of Bartlett alone. It is urged by counsel for appellants that because appellees were not present when this deed was made and no evidence of a previous contract of sale and purchase that the mistake is not mutual The mistake was mutual, to this extent at least,-that when Mrs. Ford signed and acknowledged the deed and afterward delivered it to her niece, Mrs. Richardson, one of the appellees, both grantor and grantees understood that it was a conveyance of all of Mrs. Ford’s land and it was accepted by the grantees with this understanding. There is involved in this question of mutuality also the question of consideration for the conveyance. The deed on its face expresses the consideration $300. The chancellor in his finding has reached the proper conclusion on this question, and properly says, ‘‘Leaving out Mrs. Richardson’s testimony, which is excluded on defendant’s (appellants) motion, there is no proof that the consideration was not paid. Mrs. Ford had the right to place an estimate on the consideration which moved her, whether it was cash paid, services already rendered, or to be rendered. There was testimony to the effect that Mr. Richardson h.ad helped Mrs. Ford in the past and that he would continue to do so.” Whether any money was actually paid in cash, or not, it is clearly shown by the testimony that a part of the consideration, stated by Mrs. Ford, was care and attention to her in sickness, and continued service to be rendered her during the balance of her life. This constituted a meritorious and valuable consideration and made the mistake mutual and not unilateral, because both parties regarded the contract as a mutual one. It makes no difference that, as is shown by the testimony, the appellees were not urging their aunt to make this disposition of her property. Their conduct in this regard was highly commendable and cannot be used to defeat the purpose of the grantor in the deed.
The slightest consideration for the deed will relieve it of the charge of being voluntary. 34 Cye. 929, sec. 5. This question of consideration was one of the disputed facts and the chancellor, sitting as a jury, has settled this. (See findings of chancellor.) The grantor in the deed, naming a consideration is estopped from denying that it was withóut consideration, and this applies to privies in title, 4 Ency. Ev. 191, 192, subsec. d. We now come to the consideration of the question as to the delivery and acceptance of the deed, and upon this point the only evidence in the record held by the chancellor to be competent was that of Emmett Richardson. This witness is assailed by counsel for appellant because he is the son of appellee. It is evident that this was an untrained witness, but there is nothing to show that he wasn’t telling the truth. Whatever else may be said of his testimony it is perfectly clear that he saw the deed in his mother’s possession more than once, and several months before Mrs. Ford’s death. This fact, of itself, gives rise to important legal presumptions. ‘ ‘ When a duly executed deed is found in the possession of the grantee, the law presumes that it was delivered to him.” 9 Am. & Eng. Ency. Law, p. 159; 4'Ency. Evidence, p. 158, 160, 250, 254, and note 32; Morris v. Henderson, 37 Miss. 492. “A delivery of a deed will be presumed from a slight circumstance where there is proof of an intention on the part of the grantor to convey to the grantee.” Crabtree v. Crabtree, 159 111. 342. “The intention of the grantor is an important factor on the question of delivery.” 19 L. R. A. (O. S.) 242 and causes therein cited. The possession of a deed by the' grantee is prima facie evidence of delivery when there is nothing to impeach the bona fides of his possession.” Strough v. Wilder, 119 N. Y. 530; 7 L. R. A. (Ó. S.) 555. “The signing of a deed by the grantor and its possession by the grantee constituting prima facie evidence of .delivery.” Devereaux v. McMahon, 108 N. C. 134; Blair v. Howell, 68 la. 619. Intention is a test. Gulf Red Cedar v. Ranshaw, 169 Ala. 606; Rickett v. Cowart,. 56 So. (Ala). 708; Farr v. Chandler, 57 So. (Ala.) —.
Counsel for appellants indicate that because the description of the forty acres would be void in a court of law that, therefore, it is not the subject of reformation in a court of equity. This court in the ease of Cummings v. Seele 54 Miss. 647, is not in accord with this contention. Judge Campbell in delivering the opinion of the court in that ease used this language: “This bill was demurred to on the ground that a court of chancery cannot reform a deed which contains a patent ambiguity in the description of the land intended and attempted to be conveyed. We are not aware of any such restriction on the power of the court. It is not a question of latent or patent ambiguity, but of fraud, accident or mistake in drawing the written evidence of the contract. If through fraud, mistake, or accident, the writing has not been made to speak the agreement of the contracting parties, it will be reformed to truly represent what the parties intended it should.” As we have already shown, this forty acres of land was correctly and properly described in some of the tax receipts which are made exhibits to the evidence of J. C. Fant, sheriff, and there can’t be any question as to what land Mrs. Ford' intended to convey by her deed. The deed describes it .as being in the correct quarter-section, township and range, but refers to it only as forty acres “in the N. E. quarter.” The description in the deed involved in Cummings v. Seele supra, was equally indefinite. It described the land as “130 acres off of the S. E. fourth Section 32, T. 10, Range 9.” Judge Campbell said this was subject to reformation and there is no reason why the same principle should not apply in this case. We insist, therefore, that the chancery court was not in error in decreeing a correction in this regard as well as in the description of the other lands.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
