Van Dyke v. Wallace

Clark, J. The bill was filed to correct a deed," alleging a mutual mistake in that certain sewer taxes should have been recited and excepted in the warranty-clause. Plaintiffs, husband and wife, had decree. Defendants have appealed. The question is one of fact arising upon a flat contradiction in testimony. Evidence of plaintiffs is to the effect that defendants were to pay such tax and that this matter was inadvertently omitted in making the deed. Evidence of defendants is to the effect that plaintiffs were to pay it and that there was no mistake in that regard. Evidence of value is in equally flat contradiction. Circumstances aid decision somewhat. Defendant William Wallace gave unsatisfactory testimony and was admonished by the court, in effect, to answer certain questions frankly and directly. The taxes were more than $5,000. Plaintiffs’ equity in the property — the difference between the sale price and the amount due from them as vendees in the land contract — was much less than the amount of the tax. The trial judge had the advantage of seeing the witnesses and hearing their testimony. We are not persuaded that his decision should be disturbed. Decree affirmed, with costs to plaintiffs. Flannigan, C. J., and Fellows,Wiest, McDonald, Bird, and Sharpe, JJ., concurred. The late Justice SNOW took no part in this decision.