Tyler v. Larson

VALLÉE, J.

Appeal on the judgment roll from a judgment which reforms a deed from one in joint tenancy to one as tenants in common.

Ellen R. Larson, appellant, is the youngest daughter of decedent Jennie Pover. On November 30, 1945, Jennie executed a deed conveying a parcel of realty to herself and Ellen as joint tenants. From November 1, 1945, or prior thereto, until the death of Jennie, a confidential relation existed between Jennie and Ellen. Jennie was competent and of sound mind at the time she executed the deed. There was no fraud, misrepresentation, duress, or undue influence in connection with the execution of the deed. Ellen did not give Jennie any consideration for the deed. Jennie died on February 1, 1947.

The court found that at the time Jennie executed the deed she believed and understood it would have the effect of giving Ellen only a half interest in the property and she would retain a half interest, and her intent was to make Ellen a tenant in common and not a joint tenant. The only conclusion that can be drawn from the findings is that the deed, made freely and voluntarily, without consideration, was, by mistake on the part of

Jennie

alone, made to herself and Ellen “as joint tenants.” Although an amendment to the complaint filed during the trial alleged that Ellen “knew that the decedent at the time of the execution of said deed did not intend to have said deed convey other than an undivided one-half interest in the property,” the court did not so find. There is no finding that Ellen knew of or suspected her mother’s mistake at the time of the execution of the deed.

[319]

The judgment strikes the words “as joint tenants” from the deed and substitutes the words “as tenants in common.” Ellen appeals.

The assignment of error is that the findings do not support the judgment. As this is an appeal on the judgment roll, we must take as true the facts found.

Appellant relies on Civil Code section 3399, which reads: “When, through fraud or a mutual mistake of the parties, or a mistake of one party, which the other at the time knew or suspected, a written contract does not truly express the intention of the parties, it may be revised, on the application of a party aggrieved, so as to express that intention. ...” Under this section a mistake of one of the parties alone is not sufficient ground for reformation.