Robertson v. Melville

FINLAYSON, P. J.

Defendants, who are husband and wife, appeal from a judgment reforming a deed which the wife, Ida M. Melville, as grantor, had executed to the plaintiff, Helen Robertson, as the grantee. The deed was reformed by correcting a misdescription of the land. The evidence is not in the record, the case coming here on the judgment-roll alone.

The allegations of the complaint are substantially these: The defendant Ida M. Melville was the owner and in possession of a parcel of land in the city of Los Angeles having a total frontage of sixty-five feet. It consisted of lot 3 of the G. M. Lashley tract, having a frontage of sixty feet, and the south five feet of the north 345 feet of the east 117.8 feet of lot 3 of Towner and Garbutt's subdivision of the S-. W. Little tract. All of the property, i. e., lot 3 of the G. M. Lashley tract and the adjoining five-foot strip in Towner and Garbutt’s subdivision, was “offered for sale and actually sold by said Ida M. Melville to the plaintiff Helen Robertson.” The vendor represented to the vendee that she was selling and conveying all of the above-mentioned property, and at all times referred to the property sold as having a total frontage of sixty-five feet. The deed which the vendor executed to the vendee described and conveyed all of lot 3 in the G. M. Lashley tract, but failed to make mention of the five-foot strip in Towner and Garbutt’s subdivision, with the result that the land conveyed had a frontage of but sixty feet, instead of the sixty-five foot frontage which the vendor had offered for sale and had “actually sold” to the vendee. Mrs. Melville “intended to convey to said Helen Robertson all of the property pur

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chased” by the latter, and until two days prior to the commencement of the action Mrs. Robertson “acted under the belief that there had been conveyed to her by said Ida M. Melville all of the property so purchased.” Immediately on ascertaining that the deed omitted the five-foot strip Mrs. Robertson demanded a conveyance thereof from Mrs. Melville, but the latter has refused all compliance with the demand. v Mrs. Robertson paid to Mrs. Melville all of the agreed consideration. The complaint does not allege what was the consideration that was paid for the property, but the trial court found that it was $4,500.

Though no demurrer was filed in the court below, appellants now claim that the complaint does not state a cause of action. In support of this contention it first is asserted that the action was brought and intended a® one for specific performance, and that, since the complaint nowhere alleges facts showing the adequacy of the consideration received by Mrs. Melville, the pleading is insufficient as a complaint for specific performance. The argument rests on a false premise. The cause of action alleged in the complaint is one for the reformation of the deed and not for the specific performance of the contract whereby the land had been sold. It is a cause of action for the reformation of a deed which had been executed in an attempted performance of the contract. It is true the complaint is by no means a model, and it doubtless could have been successfully demurred to on the ground of uncertainty in the allegation respecting the nature of the consideration given for the land. Nevertheless, it does appear that the consideration was valuable, i. e., that it was a pecuniary consideration. This is a necessary implication of the allegation that Mrs. Melville “sold” the land to Mrs. Robertson—the word “sold” importing a pecuniary consideration. Since, therefore, the complaint shows, by necessary inference, that there was a pecuniary consideration, there is a sufficient allegation of consideration to warrant a reformation of the deed. It may be conceded that equity will not reform a purely voluntary deed, for one who accepts another’s bounty cannot be heard to say that something else should have been given.