Capelli v. Dondero
Before: Chipman
Synopsis
Reformation of Deed—Mutual Mistake—Measure of Proof—Rules for Trial Court—Appeal—Conflicting Evidence.—In an action to reform a deed upon the ground of mutual mistake, the rules that evidence warranting the reformation of the deed must be clear and convincing and not loose, equivocal or contradictory, leaving the mistake open to doubt, and that unless the proofs come up to this standard equity will withhold relief, are merely rules for tíre government of the trial court; and they are not controlling upon appeal from a judgment reforming the deed, where the findings find support in the evidence, notwithstanding the evidence is conflicting. The court cannot in such a case enter upon an examination of the evidence to determine where the preponderance lies, or decide as to the weight of conflicting evidence.
In.—Division by Cotenants — Boundary—Mistake of Surveyor.— Under an agreement found to exist between cotenants of land to divide the land between them and to take the center line of a particular road as the boundary line between them, where a surveyor was employed to establish such line, and by miscake ran a straight line between two points agreed upon, instead of following the center of the read as agreed, a conveyance conforming to such survey, to the injury of the grantor in respect of access to his barns, buildings, and outhouses, may be reformed, upon the ground of mutual mistake, so as to conform the boundary to the agreement made.
Id.—Authority for Survey—Presumption—Negligence.—In the ab-» seuce of evidence to the contrary, it must, be presumed that the plaintiff authorized no other survey to be made than the one agreed upon, and plaintiff had a right to assume that the line would be and wasjjn fact'run in accordance with the agreement; and negligence to inquire just where the line was established cannot be presumed where the circumstances do not charge plaintiff with notice that it was established otherwise than as agreed.
Id.—Evidence—Mistake—Parol Proof—Mutuality not Essential.— The mistake may be proved by parol evidence; and it is not necessary to show that tne mistake as to the location of the surveyed line was mutual.
Id.—Corroborative Evidence for Plaintiff—Subsequent Deed of Defendant.—Testimony for the plaintiffs to the effect that both parties continued using the road, after the survey of the line as before, and that plaintiff had not three years after the survey learned the location of the surveyed line, may be corroborated by evidence of a subsequent deed executed by the defendant three years after the agreed division, in which the road was referred to by the defendant as a boundary of his property.
’Id.—Deed to Wife—Knowledge of Facts—Continued Control by Husband.—Where the court has found upon sufficient evidence that a wife made codefendant with her husband had knowledge of all the facts concerning the agreement between her husband and the plaintiff, at the time of a deed made to her by her husband, and the case was tried as though the husband still owned the property, the question whether his deed to his wife would affect the rights of the plaintiff need not be considered.
CHIPMAN, C. Action to reform a deed on the ground that it was executed under a mutual mistake of the parties to it. It appears from the findings of fact that prior to December 10, 1890, plaintiff and defendant Charles Dondero were the owners of a tract of land situated near the town of Watsonville, containing about seventy-four acres; on or about said date they agreed to divide said land so as that each could own his interest in severalty, and to that end agreed to make a certain private roadway, running through the tract from west to east, the dividing line, plaintiff to take the portion on the southerly side and defendant Charles Dondero that on the northerly side of this road; this private road was entered by a gate at the county road and terminated on the eastern boundary line of the tract at a stake marked “C & D” midway of two cherry trees; a surveyor was employed to establish the center line of this road which was to become the division line; he ran a straight line between the two points agreed upon, which gave a course north seventy degrees east, distance thirty-eight and fifteen one-hundredths chains, instead of following along the center of said road as was agreed should be done. Some distance from the gate entrance and s„uth of this road plaintiff’s buildings, barns, and outhouses were situated, “a sufficient distance from the southerly line of said private road so as to make and render the said barns, buildings, and outhouses convenient of access and use by said plaintiff”; a plat is attached to the complaint which the court finds correctly shows the location and course of this road and its center line, and the situation of plaintiff’s said buildings relative thereto. The contention turns upon the question as to the location of this center line. Plaintiff contends and the court found, that the center of this road from the center of the gate took a course north seventy, degrees east for twenty-one and six[327]ty-two one-hundredths chains to a point west of and not far from plaintiff’s buildings, where it bore a little more to the north, following the center of the road (sixty-nine degrees and twenty-five minutes east) five and twenty-one one-hundredths chains; thence along the center of this road north seventy and one-half degrees east-eleven and thirty one-hundredths chains to said stake marked “C & D.” Appellants contend for a straight line from the point of beginning to the point of ending. The difference in acreage is very little. The slight divergence from a straight line near the buildings, returning to it at the stake “C & D,” was necessary to give to plaintiff the free and unobstructed use of his buildings. It further appears from the findings that on December 18, 1890, by direction of both parties, one Julius Lee, Esq., who had been their attorney, prepared a deed which was executed by defendant Charles Dondero to plaintiff, conveying the tract south of this road, describing the dividing line as it was surveyed; the deed was left with Lee, who had it recorded in January, 1891; the parties at this time, and until July 8, 1895, mutually understood that the division line as described in the deed was the center of said road, and the said deed was executed and accepted under such belief, but said described line was inserted in said deed by the mutual mistake of the parties named therein; no stakes or marks were placed by which said line could be ascertained by any person examining the same. Plaintiff did not discover said mistake until about July 8, 1895, when for the first time the defendants commenced to erect a fence upon said line and procured said surveyor to lay out by stakes the line surveyed by him; plaintiff then discovered that the line did not follow the center of said road, as originally agreed upon, but was so run that the fence so constructed by defendants stands a distance of four or five feet from the center of said private road, and so close to the said buildings “as to render them in their location and situation to said fence, worthless and of no value or use to plaintiff”; if said fence had been erected on the dividing line as agreed upon “plaintiff would have had the free and uninterrupted use and enjoyment of said buildings”; defendant Charles Dondero conveyed to his wife, codefendant, his interest in the premises on November 18, 1894, who had full knowledge and notice of all the facts above related.
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