Sullivan v. Moorhead

Harrison, J. October 10,1889, the plaintiffs and defendant entered into an agreement for the exchange of lands, by which the defendant agreed to convey to the plaintiffs certain property in Los Angeles “ known as lots ten (10), eleven (11), twelve (12), and thirteen (13), in the Pomeroy and Mills subdivision of the Hollenbeck tract, containing about two hundred (200) feet front, and one hundred and ten (110) feet in depth, together with the houses thereon known as Hos. 706 to 712, Hew Main Street, inclusive.” In purported execution of this agreement the defendant on the seventeenth day of December, 1889, made a conveyance to the plaintiffs of “lots Hos. ten (10), eleven (11), twelve (12), and part of thirteen (13), in block Ho. 2 of the Pomeroy and Mills subdivision of the Hollenbeck tract, containing about two hundred (200) feet front, and one hundred and ten (110) feet in depth, together with the houses thereon, known as Hos. 106 to 112, Hew Horth Main Street, inclusive.” The plaintiffs having ascertained in February, 1890, that the deed of conveyance did not embrace all the land which the defendant had agreed to convey to them, commenced this action to compel the defendant to carry out the terms of his agreement, and for a revision of the instrument of conveyance so that the description therein would conform to the agreement of October 10, 1889. The case was tried by the court without a jury, and findings of fact were made in support of the averments in the plaintiffs’ complaint, and judgment rendered in their favor. The defendant moved for a new trial upon the ground that the evidence was insufficient to justify the decision, [160]and that the decision was against law, and for errors of law occurring at the trial. The new trial was denied, and from this order and also from the judgment he has appealed.

The main contention of the appellant is that, because at the time the deed was executed the plaintiffs examined the description therein, and were thus aware that it purported to convey only “a part of lot 13,” there could have been no mistake on their part, and as the defendant testified at the trial that it was his distinct understanding that he was to give only a part of lot 13, there was no mutual mistake, and consequently no-ground for a court of equity to reform the instrument of conveyance. For the purpose of determining, however, whether the instrument expressed the intention of both parties thereto, or whether the description inserted therein was by reason of a mutual mistake, or a fraud on the part of the appellant, the court was not bound to accept the statement of the defendant at the trial, or concluded by the fact that the plaintiffs had examined the instrument before it was delivered to them. If the court was satisfied from all the evidence at the trial that notwithstanding such examination the plaintiffs did not then understand the terms of the instrument, and were not aware that it failed to convey all the land which they were entitled to receive under their agreement, it was authorized to find that it was accepted by them under a mistake in this particular. The transaction between the parties took place at San Francisco, and the 2>laintiffs had not seen the laud until after the execution of the deed. The defendant in his negotiations with the plaintiffs re2>resented that the property he was to convey had a frontage of two hundred feet, and each of the lots which he agreed to convey had in fact a frontage of fifty feet. The defendant had agreed to convey to the plaintiffs these four lots, and he himself testified at the trial that he said to the plaintiffs at the time the deed was presented for examination that the description therein was according to agreement of October 10, 1889. The testimony of the plaintiff James that he always supposed that the deed gave him two hundred feet is uncontradicted, and the fact that he read the deed is not conclusive against his having misunderstood its terms. If the evidence was sufficient to satisfy the court that the deed did not ex2)ress the intention of