Blackburn v. Perkins

McCLELLAN, C. J. The evidence in this transcript satisfies us that Perkins contracted to sell to Mrs. Maura that forty acre subdivision of the northeast quarter of section 28, township 1, range 2 west, upon which were at the time certain houses and other improvements and that he put her in possession of that particular subdivision. By an arrangement among the parties, Mrs. Blackburn, the complainant, acquired Mrs. Maura’s interest under this contract, paid Perkins the price Mrs. Maura was to pay, and thereupon Perkins undertook to make a deed to Mrs. Blackburn of the land involved in the Maura contract and of which the Mauras were in possession. This land, it is clear to us on the testimony, was the north-east quarter of the north-east quarter of said section. This is the land all the parties contracted with'reference to and of which first the Mauras and after them the complainant went into possession. This is the land Mrs. Blackburn paid for, and to which she was entitled and supposed she had received a deed. But in drawing the deed Perkins, presumably by mistake, but if not mistakenly then fraudulently, inserted in lieu of the north half of said forty acre parcel, the north half of .the forty acre parcel adjoining it on the south, all the improvements being on that part of the forty contracted for thus wrongfully omitted from the deed. On this statement of the case, we have no difficulty in reaching the conclusion that the complainant is entitled to the relief by way of reformation of Perkins’ deed to her which she prays. [310] We are not impressed that there is any merit in the ■suggestion that there is a material variance between the averments of the bill and the proof in respect to the first sale by Perkins. In a sense, this sale was to Prank 'Maura, though the place was intended for his wife, and the transaction was had between him and Perkins in the name of his wife. Whether the sale first contracted Avas in a strictly legal sense to the one or to the other, was of no consequence to the complainant, and her rights were the same, whether to the one or to the other. The matter being thus purely collateral, a failure to prove the averment as made, should not operate to deprive her of the relief she is entitled to. The complainant is under no obligation to reimburse Hooper’s estate for improvements he put on the land. He had only a quit claim deed and, morecwer, he had actual notice of Mrs. Blackburn’s ownership. In erecting buildings, fences, etc., he acted at his peril, and her bill is not bad for not offering to [Day him their value. The decree of the chancellor must be reversed, and the cause will be remanded for further proceedings in that court in accordance with this opinion. Reversed and remanded.