Allen v. Brown Another

Ames, C. J. The power and duty of a court of equity to reform an instrument drawn by mistake, sO'as to make it express what both parties originally intended, is unquestionable, whether the instrument be designed as evidence of an executory or an executed contract, and whether the question arises between the parties to the instrument, or those claiming under them in privity, as heirs, devisees, judgment creditors, voluntary grantees, or purchasers with notice. 1 Story, Eq. Jurisp. § 165. In the exercise of this jurisdiction the court will require for its action clear, full, and satisfactory proof of the mistake; and will, both in the spirit of the common-law rule which prohibits the admission of inferior evidence to contradict *397 that which is written, and of the statute of frauds, where it applies, proceed with great caution upon evidence resting in parol. Such a court would, however, in the language of a distinguished American jurist, “ be of little value if it could suppress only positive frauds, and leave mutual mistakes, innocently made, to work intolerable mischiefs, contrary to the intention of the parties. It would be to allow an act, originating in. innocence, to operate ultimately as a fraud, by enabling the party who receives the benefit of the mistake, to resist the claims of justice, under the shelter of a rule framed to promote it.” 1 Story, Eq. Jurisp. § 155; see also §§ 156-159. Accordingly, in this country, as well as in England, although evidence inferior in its general nature is received for the purpose of correcting an undesigned variance between the real and the written contract, the courts refuse relief unless in cases clearly and unequivocally proved to require it; and hold, that it would be at least exceedingly difficult to prove the mistake, if the answer denied it, and there was nothing to rely upon but the- recollection of witnesses. 2 Leading Cases in Equity; Hare & Wallace’s notes, 680-684; Adams’s Equity, 168, n. 1,168-171, and cases cited. The case stated for the complainant is, that in selling the north-east corner of his farm to his son, it was agreed between them that he should reserve two thirds of the sea-weed privilege of the tract, in distance upon the shore, and grant only one third of the privilege, measuring the third so granted from the east end of the Eldred line, southerly, upon the east beach, and that when his son afterwards parted with the farm by exchange to the defendant Brown, the latter agreed to take the farm upon this understanding of the extent of the sea-weed right held by his grantor, and to be conveyed to him ; but that the scrivener employed to draw the deed from the complainant to his son, the description in which was copied into the deed from the son to Brown, instead of reserving to the complainant two thirds of the sea-weed privilege of the tract as agreed, granted, by the terms of the deed, the whole tract, carrying all rights and privileges with it, and then, nugátorily, attempted to limit the grant by a further grant of part only of that, the *398 whole of which had before been granted. It is true that if such a mistake was made, it arose, from ignorance of the principles of conveyancing on the part of the draughtsman of the first deed; but where an instrument is so drawn as to violate the intent of the parties to the agreement which it is designed to execute, through the draughtsman’s ignorance of law, equity will correct the mistake, and thus produce a conformity of the instrument to the agreement, equally as if the draughtsman’s mistake had arisen from his ignorance of facts. Hunt v. Rousmaniere’s Adm’r, 1 Peters, Sup. Ct. R. 1, 13. A distinction is recognized between such a case, and a. case in which the parties have deliberately agreed upon a certain kind of instrument which is, from its nature, best calculated in some respects to carry out their views, although in some contingencies which they did not contemplate, or, concerning the adaptation of the instrument to meet which, they were badly advised, it would not serve their purpose. In the one case, it is not the instrument upon which the parties have agreed; in the other, it is the precise instrument agreed to be given and received, although, had they contemplated or known its operation in every aspect, they would not probably have agreed upon it. Ibid. The proof of the mistake alleged by the complainant is mainly derived from the internal evidence afforded by the deeds themselves; a source of evidence as high, because the same, as the instruments to be corrected, and, upon every principle, perfectly unexceptionable. 1 Story, Eq. Jurisp. § 168. No one can read the deeds, so far as they relate to the seaweed privilege, without perceiving, that from ignorance of the distinction between an exception or reservation out of a grant, and an inconsistent explanation of what was granted, the transparent intent of the parties to them was, in this respect, miserably defeated. We must reject altogether the clause of explanation, the only one which expressly speaks of the seaweed privilege, and taken by itself, clearly though inartificially tells what the parties intended with regard to it, before we can come to the conclusion that the complainant, in his deed to his son, designed to convey more than either one third of the whole shore privilege, in distance upon the shore of the farm out of *399 which this tract was sold, or one third of the privilege in distance, upon the shore of the tract. This third, whichever it was, was to be measured off, beginning at the north-east corner of the tract, which would bring it upon the east beach, and was to extend southerly upon that beach; the inference from the description being, that it would be exhausted upon the east beach, and before it reached Quonset Point. When, in .addition to .this, we consider the evidence of the scrivener who drew the deed, that the contract of the parties was that the grant should embrace only the north third of the sea-weed privilege, in distance upon the shore of the tract conveyed, and that by the deed as drawn he designed to carry out this contract, and supposed that he had done so ; that this was explained to the defendant Brown, at the time of his purchase, and that he purchased upon this construction of the grant, the precise words of which were incorporated into that received by him ; that the privilege was thus measured off by the scrivener, who was also the surveyor employed for that purpose by the complainant and Brown, and a post was by him set up on the east beach, as the southern bound of the shore privilege of Brown ; that this bound was during the first season of his occupation repeatedly pointed out by Brown as the limit of his sea-weed privilege upon the shores of the tract; that the occupation of the parties during this season conformed to the bound, and Brown actually bought of the complainant sea-weed from the shores of the tract beyond the bound; and, lastly, that all this is, in effect, admitted in Brown’s answer, as originally drawn, and, with the exception of what the contract with him originally was, in his amended answer, we cannot doubt that the original contracts of the complainant with his son and of his son with Brown were as alleged in the bill, and that by mistake of the scrivener and of all parties, the deeds were not, in respect to the seaweed privilege, drawn in conformity to the contracts. Indeed, as suggested by the counsel for the complainant, Brown’s cross-examination of the witness Smith, contains, in the form of a question personally put by him to that witness, an implied admission that such was his understanding until he had an opportunity to examine and understand the effect of his deed, *400 which, if he had understood before the survey sworn to by Smith, he never should have allowed the survey to be made. Were this the whole case, our course of duty would be plain, to give to the plaintiff the relief which he asks. The aid of a court of equity in holding parties to their contracts, either by specifically enforcing them, or by correcting mistakes in the instruments executed as evidence of them, is always, however, limited by the countervailing equities, in the same matter, of those against whom it is invoked. These equities it compares and balances with those upon which it is required to act, and by virtue of them it modifies, or refuses altogether its relief, as will best conserve the cause of justice. Not only actual fraud, but surprise in the nature of it, a hard and unconscionable bargain, and even laches, may always be set up to bills of this nature, in total or partial defence, according to the circumstances. A strong example of this is found in the course of a court of equity with a bill to rescind a contract, on the ground of fraud; for, though the relief in such case is strictissimi juris, there may be circumstances which may justly mitigate the severity of the law ; or may place the parties in pari delicio ; or 'require the court, from the demerits of the plaintiff in the particular transaction, to abstain from the slightest interference. 2 Story, Eq. Jurisp. § 694. Now the answer, in substance, sets up by way of defence to this bill, that the defendant, at the time he exchanged his farm in Exeter for this tract of land in North Kingston, was in a weak and excited condition of mind, which incapacitated him, not only from coping with the complainant, who principally managed the bargain on the part of his son, but from making with any one so important a contract"; that having never seen the tract but once before the bargain was made, and then only the evening before, and being wholly unacquainted with its capabilities, the complainant and his son, amongst other things, represented to him, that the sea-weed privilege, which under the deed was to pass with the tract, would not only furnish sea-manure enough, "annually, for the use of the place, but give him a surplus to sell, worth to him from fifty to seventy-five dollars per annum ;• that these representations were not only *401 -false, — the privilege concerning which they were made yielding only some fifteen cart-loads of sea-weed and eel-grass, a year, — but were known by both the complainant and his son to be so; and that in consequence of these misrepresentations he was, in his weak and excited condition, induced to exchange his Shaw farm, of one hundred and seventy-five acres, for a tract of thirty acres, which, without the privilege of sea-manure conveyed by the deed, is not worth more than a quarter of the value of'the farm given in exchange. Upon a careful consideration of the evidence submitted to üs, on both sides, touching this matter in defence, we are constrained to say that it is substantially proved. The decided wéight of the evidence is, that although the defendant Brown, has not, at any time, been an insane man, yet at the time of this exchange, and for some time previous and since, he was, and has been in a nervous and excitable condition, rendering him incapable of that caution and deliberation which a business transaction of such a nature requires. This is deposed to, not only by members of his family, and by his neighbors, but by a highly respectable witness, Mr. John J. Reynolds, with whom he has lived, at different times, for eight or ten years, as an assistant in his shop, in North Kingston. Even the complainant’s witness, Harris Smith, undesignedly confirms this testimony by his narrative of the pleased condition of Brown when going to make the bargain of exchange, congratulating himself as he went up the road from the shop of Smith, with the saying of “ a fool for luck; ” and hallooing to the witness as he repassed the shop on his return from making the bargain, the same expression. This state of excitement alone, and if he had been fairly dealt with, certainly would not have -been sufficient to impeach the contract made under it, or even to have furnished a reason why, there being a mistake in the deed, he should not be held to his bargain. But the evidence further shows, that strong representations of the productiveness and value of the sea-weed privilege to be granted, were made by the complainant to satisfy him and his family of the expediency of the exchange, and precisely as stated in the answer. Four witnesses, one of them produced by the complainant, swear to these rep *402 resentations ; and there is much other evidence in the case coming from both sides, that shows what prevailing effect, in his then excited condition, these representations had upon the defendant. If his friends objected that the tract, for which he purposed to exchange his farm had no firewood upon it, his answer was, that he should have surplus sea-weed enough to buy it with; if, that it was illy fenced, the surplus sea-weed was the fund out of which this want was to be supplied. His heated expectations in this matter, in the absence of all personal knowledge, must have been built upon the representations of the complainant and his son; and as these related to a fact, and not to opinions merely, if falsely, and especially if fraudulently made, they raise up a strong equity in defence to the bill. Now the evidence, upon examination shows, that the portion of the shore which by the alleged contract was to be measured off to the defendant for a sea-weed privilege, was the most unproductive part, for this purpose, of the shores of the tract; that, although on one occásion, about eight or ten years ago, some hundred cart-loads of sea-weed were, after a violent storm, cast upon it, yet that its annual product in this way is, in general,' small, and insufficient even to manure the tract, not yielding more than from twelve to fifteen loads a year; and, indeed, that the whole shore of the granted tract, — for such is the testimony of Dawley, the complainant’s witness, — will not yield more sea-weed, annually, than the complainant represented might be obtained from that portion of it which, by contract, was to be measured off to Brown. The evidence further shows, not only that these representations of the complainant were not known to him to be true, but that they were known by him to be false; this being inferable not only from his knowledge, as former owner of the premises, of the relative value of the different parts of the shore for sea-weed, but from his own admissions and boasts of the great bargain he had got out of the defendant, made just after it was executed. The result is, that the complainant, as the weight of the proof indicates, has obtained for his son decidedly the advantage in the exchange of farms, even if we leave the parties precisely where we find them ; but if we correct the mistake which was made in drafting the *403 deeds, his son will have an advantage in the bargain, according to the complainant’s estimate, of from a thousand to fourteen hundred dollars. It is no answer to this to say, that the defendant sought the exchange, — was rejoiced at it when made — and even boasted of -his sea-weed privilege afterwards, until his experience of its unproductiveness had corrected the impressions made by the misrepresentations of the complainant. All this merely shows how entirely, in his eager and excited state, he trusted to the inflamed statements of his opponent in the bargain, of which he should have been wary, and how completely he has, in consequence, been overreached by him. Under such circumstances, a mistake in the conveyance which executed the contract having providentially balanced the mischief wrought by the misrepresentation which procured it, the most perfect jtístice will be done by not interfering with this most equitable adjustment, and by dismissing the bill of the party who seeks to disturb it, with costs. By the amended answer, it appears, that the defendant now claims under his deed not only the sea-weed landed on the shores of the tract conveyed to him, but a sea-weed privilege, also, in one third of the remaining shore of the complainant’s farm. As this may lead to further litigation, we think it proper to add, that such a claim finds no support in the language of the deed under which it is made. This compels the defendant to begin to measure his third, in distance upon the shore, from the north-east corner of the tract conveyed, although it does not limit, as it was designed to do, the effect of the preceding conveyance to him, of the whole tract with its appurtenances. . Bill dismissed, with costs.