Fagan v. Graves

Kirby, J., (after stating the facts). The rule of evidence is different, requiring more proof than the establishment of the contention by a preponderance of the testimony in order to justify the reformation of a deed "or written instrument on the ground of mistake. In Eureka Stone Co. v. Roach, 120 Ark. 326, 179 S. W. 499, the court said: “It is the settled rule of this court that, to justify or authorize the reformation of a written instrument on the ground of fraud or mistake, the eyi-dence of such fraud or mistake must be clear, unequivocal and decisive.” See also Cain v. Collier, 135 Ark. 293, 205 S. W. 651; Welch v. Welch, 132 Ark. 227, 200 S. W. 139; McGuigan v. Gaines, 71 Ark. 614, 77 S. W. 52; Johnson v. Stuart, 97 Ark. 635, 135 S. W. 354; Waddell v. Bowdre, 151 Ark. 474, 236 S. W. 599; Norsworthy v. Hicks, 170 Ark. 877, 281 S. W. 660. The undisputed testimony shows that a settlement between the parties was agreed upon for the division of the lots and the conveyance made in completion of it, and the argument that appellant owed no duty to his mother to make such settlement is of no moment. The recitals of the deeds do not purport to show the terms of such settlement, however, nor any intention that the land to be retained by appellant should include that upon which the storehouse was.situated. Several witnesses testified that it was understood that appellant should keep the land upon which the storehouse was situated, and it was the intention to effect this by the description in the conveyance. The other testimony tended to show, however, that the description was made in accordance with the agreement of settlement, and that appellant and one of the arbiters had gone out and stepped or measured the lots off before the deeds were written and had given the description as written to the draftsmen, thinking at the time that the land retained included the storehouse. If he made a mistake in his estimate or measurement, not knowing the boundaries of his lots and the streets as laid out, his inclosure not conforming thereto, and the description was written in accordance with his direction, .it cannot be said such, mistake was mutual or warranted a reformation of the deed. The evidence of any such mistake as would entitle the plaintiff to the relief sought is not clear, decisive and' unequivocal, as the law requires. We find no error in the record, and the judgment is affirmed.