Cleghorn v. Zumwalt

Fox, J. Action to reform a deed. Judgment for defendant, and plaintiff appeals. The case comes up on the judgment roll.

• It appears from the findings that in October, 1885, Mary Clegborn, then a minor, was the owner of an undivided one-tenth interest in the northwest quarter of section 11, township 18 north, range 6 west, Mount Diablo meridian, which she had inherited from her father; that upon the death of her father a one-half interest in said land passed to her mother, who had also died in October, 1885; that in the course of settlement of the estate of the mother, and on the eighth day of May, 1886, the said one-half interest so held by the mother was, by an order of the probate court duly given and made, set apart to and declared to be the property of said Mary, but she was then advised by her counsel that this order only gave her the use of the property during her minority, and that upon her becoming of age her brothers and sisters would take each a one-fifth interest therein, the same as they7 had done in her father’s [157]estate, leaving one fifth to her, thus vesting in her at her majority two undivided tenths, or one undivided fifth of the whole title to the tract.

The court finds that this—the one-fifth interest—is what she and the defendant both supposed she owned, when in November, 1887, she being then of lawful age, defendant agreed with her to purchase her interest in the tract, and ¡jay her five hundred dollars therefor, which price the court finds was the value of an undivided one fifth of the tract. The court further finds that subsequently, and before the deed was executed, upon examination of an abstract of title, defendant was informed by his attorney, and at the time of the execution and delivery of the deed and payment of the money, knew that the interest of plaintiff in the tract was three fifths instead of one fifth, but did not disclose the fact to plaintiff. The deed was in a form that conveyed all her interest, whatever it might he. The relief sought is to so reform the deed that it shall convey an undivided one fifth, as both parties expected it would and intended it should, at the time the bargain was made for it and the price was fixed, and as one of them believed it did when it was made.

The granting of this relief is resisted, not on the ground that it would be inequitable, or would not make the deed conform to the purchase as actually made, but on the technical ground that at the time of the actual execution and delivery of the deed there, was not a mutual mistake of fact as to what it conveyed.