Hochstein v. Berghauser

California Supreme Court Mar 8, 1899 No. S. F. No. 849Published

Before: Harrison

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Holding. The court held that a deed cannot be reformed for mistake without clear evidence of mutual mistake, and that the term 'heirs' in a deed must be construed according to its strict legal definition to include a surviving husband unless otherwise qualified.

Issues

Whether a deed may be reformed based on an alleged mutual mistake regarding the estate conveyed.
Whether an executory agreement can be superseded by a subsequent deed conveying a different estate.
Whether the term 'heirs' in a deed includes a surviving husband in the absence of qualifying language.

Disposition. reversed

Quotations verified verbatim against the opinion

“The agreement of October 31, 1873, was, however, only executory in its character, and, so long as it remained executory, the parties thereto could change its terms or rescind its provisions”

Synopsis

Reformation of Deed—Mutual Mistake—Degree of Proof.—A court is not authorized to reform a deed upon the ground of mistake, unless it is shown by clear and satisfactory evidence that there was a mutual mistake, and that, as written, it does not express the intention of both parties; and the evidence must be such as to leave no reasonable doubt in the mind of the court in what the mistake consisted, and what reformation should be made to express the intention of both parties.

Id.—Question of Fact—Findings—Sufficiency of Evidence.—The question whether the evidence is sufficient to establish the intention of both parties contrary to the terms of the instrument, is one of fact to be determined by the trial court, and its decision upon the weight or conflict of the evidence is not open to review upon appeal. Where the court finds that there was no inadvertence or mistake on the part of either of the parties or of the scrivener, its findings cannot be disturbed upon appeal as not sustained by the evidence, if the appellate court cannot say from the evidence that its conclusion was incorrect.

Id.—Husband and Wife—Executory Agreement—Life Estate, with Remainder to Children—Deed in Feb Simple—Presumption.—An executor’s agreement between a husband and wife, pending an action for divorce, that the husband would convey a life estate to the wife, with remainder to the children, does not vest any interest in the children, nor prove a mistake in a subsequent deed from him to her in fee-simple. The parties could change the terms of the agreement so long as it was executory, or make such other disposition of the property as they might choose. It must be presumed that the deed, when executed, expressed the intention of the parties.

Construction of Deed—Limitation to “Heirs” of Deceased Children. A limitation in a deed of part of a remainder to the “heirs” of deceased children, is to be construed as meaning persons who would succeed to their estate in case of intestacy, and as including the surviving husband of a deceased daughter.

Appeal—Facts not Appearing.—Facts averred in an answer which do not appear in the findings or in the evidence in the record upon appeal must, for the purposes of the appeal, be regarded as nonexistent.

HARRISON, J. Appeal from an interlocutory decree in partition. The property involved herein originally belonged to John Berghauser, who, by an instrument bearing date October 31, 1873, conveyed to his wife, Margarethe, an undivided third part thereof, with the exception of one parcel, to be hereinafter mentioned. At that date an action for divorce was pending between the parties, and an agreement was entered into between them providing that in case the court should render a judgment of divorce Berghauser should convey to his wife certain described property, .including an undivided third of a portion of that involved herein. A judgment of divorce between them was rendered by the court, but no disposition or mention of property was made in the judgment, nor did the above deed of conveyance executed to Margarethe purport to be made in pursuance of the agreement or of the decree.

One parcel of the property, known as the “Prescott House,” was within the district affected by the opening of Montgomery avenue, then in process of accomplishment, and it was provided by the agreement that Margarethe should be entitled to an undivided third of all moneys or bonds which might be received for damages awarded under the statute authorizing this improvement, and that “as soon as these moneys or bonds are received by defendant, plaintiff shall be entitled to her aforesaid share of the income or interest thereof, and as soon as said moneys or said bonds are invested in property by defendant, he shall forthwith convey to plaintiff by a good and sufficient deed, free and clear from all encumbrances, her aforesaid share of the property so obtained. It was further provided in the agreement that the deeds to Margarethe should convey to her only a life estate in the above property, with a remainder in fee to the six children of the plaintiff and defendant, share and share alike, and, in case of the death of any such children, then to their heir or heirs; and in the above deed executed to her the estate conveyed was limited and defined as follows: “To have and to hold the said lots of land with the improvement thereon unto the said party of the second part during her life, and upon her death to the children of said parties of the first and second part then living, share and share alike, and, in case of the death of any such children, then to their heir or heirs.”

[684]By the opening of Montgomery avenue a portion of this property was taken for the street, and the sum of fifty-four thousand dollars was awarded as damages therefor. Under a provision therefor in the aforesaid agreement, Berghauser mortgaged the “Prescott House” property for the sum of fifteen thousand dollars, and with this money, and a portion of the fifty-four thousand dollars received for the property taken for Montgomery avenue, he purchased a parcel of land fronting upon the avenue directly west of and adjoining the “Prescott House,” and constructed thereon an addition to the old “Prescott House,” and reconstructed the whole upon the line of the new street. After the completion of the improvement, viz., April 1, 1875, he executed to Margarethe a^ conveyance in fee simple absolute of an undivided third of the lot of land thus purchased by him.

Hochstein v. Berghauser

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