Kocher v. Hayford

Appeal from a judgment for the plaintiff, and from an order denying a new trial, in the Superior Court of the County of Stanislaus. Hewell, J.

Action to reform a deed executed by the defendant to the plaintiff. The complaint, in effect, alleged the execution of the deed, for a valuable consideration, and the mistake— which consisted in the insertion of the north-west quarter of section 6, etc., instead of the north-east quarter, as was intended. The answer, in effect, alleged, that at the time of the execution of the deed referred to in the complaint, the plaintiff executed to the defendant a bond—which was part of the consideration for the deed—by which he bound himself, upon certain conditions, to convey to the defendant the same lands described in the deed, including.the north-west quarter of section 6, and also executed to him a lease for the same lands; that the said bond was intended to describe the same lands intended to be described in the said deed; that plaintiff has never tendered or offered to give defendant a bond for a deed for any other lands than those described in said bond, and has never offered or tendered to defendant, that if defendant would change or correct the description of the lands mentioned in the deed, the plaintiff would change or correct the description of the lands mentioned in the bond. The Court found, that before any proofs were offered in the cause, the attorneys for plaintiff admitted in open Court that the same mistake occurred in the bond as in the deed, and offered to reform the bond if the defendant would reform the deed; and that prior to the commencement of the suit the plaintiff made the same offer to the defendant; also, that the lease referred to had expired, and that under it during the term the defendant enjoyed the possession of the north-east quarter of -the section. A petition for hearing in bank was filed in this case after judgment, and denied.