Greenhaw v. Combs

Wood, J., (after stating the facts). The consent order of reference contemplated nothing more than a finding of facts by the referee. The referee was a surveyor, and the order directed him “to survey the land in controversy, make plats of the same, take and hear proof, and make and file report of his findings at the next term of court.” But if the parties' contemplated by the use of the word “findings” both a finding on the facts and the law, there is nothing to indicate a consent to be bound by these findings. The findings of fact by a consent referee have the same conclusiveness as the verdict of a jury or the findings of fact by a court sitting as a-jury. Davis v. Schwarts, 155 U. S. 636; Crawford v. Neal, 144 U. S. 585; Furrer v. Ferris, 145 U. S. 132; Kimberly v. Arms, 129 U. S. 512. Where there is any testimony legally sufficient to support such findings, they will not be set aside. Authorities supra. There is no controversy here as to the correctness of the findings of facts by the referee. It is contended that the chancellor erred in not treating as conclusive the finding of the referee “that the deed of G. B. Greenhaw to F. P. Greenhaw and that of F. P. Greenhaw to Gertrude Combs should be reformed so as to describe the lands intended to be conveyed in the outset (by Greenhaw) and as described herein above and also shown on the plat herewith appended.” There would be more plausibility for such contention if the matter by consent had been referred as was the case of Kimberly v. Arms, supra, with power “to hear the evidence and decide all issues between the parties and make his report to the court, separately stating his findings of law and fact,” etc. Even 'in that case the Supreme Court of the United States said that the findings of the master, “like those of an independent tribunal, are to be taken as presumptively correct, subject indeed to be reviewed under the reservation contained in the consent and order of the court, when there has been manifest error in the consideration given to the evidence, or in the application of the law, but not otherwise.” Kimberly v. Arms, supra, p. 524. In that case it will be observed that the reference was to a lawyer, and he was “to decide all the issues between the parties,1’ etc. In Davis v. Schwartz, 155 U. S. 631, the case was referred to a master “to report, not the evidence merely, but the facts of the case, and his conclusions of law theréon.” The court said: “His finding, so far as it involves questions of fact, is attended by a presumption of correctness similar to that in case of a finding by a referee, the special verdict of a jury,” etc., and the court found that there was nothing to show that the “findings of fact were unsupported by the evidence,” and hénce treated them as conclusive, but the court in that case did not treat the conclusions of the master on the law as conclusive. On the contrary, these findings were all, save one, overruled. See Davis v. Schwartz, supra, pp. 635, 647. Guided by these principles, the findings of fact by the referee in the case at bar were amply supported by the evidence; but his finding or conclusion of law was erroneous, and the court properly refused to sustain such conclusion. It was not claimed that any fraud was perpetrated by appellee in securing the deed. The findings of fact show that she “believed that she was buying title to all the lands within the boundaries described in E. P. Green-haw’s deed to her.” The findings of facts also show that Green-haw “conveyed by mistake land which he did not intend to convey.” According to these findings, there was no mutual mistake. The mistake was by only one of the parties; appellee got a deed to the lands she thought she was buying, while appellant gave a deed to land that he did not think he wás selling. In such case there can be no reformation. In McGuigan v. Gaines, 71 Ark. p. 619, this court said: “It is not claimed that any fraud was perpetrated in this case; and to entitle the parties to reform a deed on the ground of mistake merely it must be clearly shown that the mistake was common to both parties, and that the deed as executed expresses the contract as understood by neither.” The chancellor having found that there was no equity in appellant’s bill, and, there being nothing in the record to discover that appellee, and cross-appellant, was in the wrong in any manner in the defense of the suit that was brought against her, nothing to show that appellant incurred any costs that were not incident to his own ill-advised suit, we" do not see any reason for assessing costs against her, and we think the chancellor erred in so doing. The decree dismissing. appellant’s complaint for want of equity is affirmed. The decree against appellee and cross-appellant for costs is reversed, and judgment will be entered here in her favor for costs. , McCulloch, J., not participating.