Mason v. Brevoort

DeNNx, J. The plaintiff’s sole assignment of error is to the action of the court below in sustaining the defendants’ motion for judgment as of nonsuit. In the trial below no evidence was introduced tending to show that the defendants, representing themselves or as agents for their predecessors in title, had anything to do with the preparation of the deed executed as of 5 May 1950 by the plaintiff and his wife, or that they, or any one of them, were consulted about the form or contents of the reservation inserted in the deed. The evidence is to the effect that Maurice Brevoort was present when the deed was executed and the reservation was read; that he agreed to the terms and turned a check over to Mr. Mason. The deed was duly executed, notarized, and recorded. The plaintiff offered no evidence in support of the allegation in his complaint to the effect that the grantors and the grantees had agreed prior to the execution of said deed “that the plaintiff reserves the right for a period of ten years to cut all the commercial timber located upon the lands described in this deed measuring 6” in diameter at ground level, and particularly all such timber of such description located to the North of the blazed line.” To the contrary, the plaintiff testified that the reservation inserted in the deed was what he told his attorney “to put in thé deed.” In the case of Cox v. Freight Lines, 236 N.C. 72, 72 S.E. 2d 25, this Court said: “The court cannot submit a case to the jury on a particular theory unless such theory is supported by both the pleadings and the evidence.” In an article in the North Carolina Law Review, Volume 15, at page 155, et seg., it is said: “After the contractors believe they have definitely prescribed the terms and limits of their bargain they undertake to reduce it to written form. This may be attempted by one of the parties or some third person such as an attorney. Through forgetfulness, lack of understanding, misinformation, or even fraud, the draftsman may produce a document which does not conform to the bargain. When this has happened the instrument will be reformed by [622] the court. If, however, the document is in accord with the original understanding of the parties the court cannot correct it, irrespective of how unfortunate may be the bargain it represents * * In the case of Crawford v. Willoughby, 192 N.C. 269, 134 S.E. 494, this Court said: “The party asking for relief by reformation of a deed or written instrument, must allege and prove, first, that a material stipulation, as alleged, was agreed upon by the parties, to be incorporated in the deed or instrument as written, and second, that such stipulation was omitted from the deed or intrument as written, by mistake, either of both parties, or of one party, induced by the fraud of the other, or by the mistake of the draughtsman. Equity will give relief by reformation only when a mistake has been made, and the deed or written instrument because of the mistake does not express the true intent of both parties. The mistake of one party to the deed, or instrument, alone, not induced by the fraud of the other, affords no ground for relief by reformation.” Smith v. Smith, 249 N.C. 669, 107 S.E. 2d 530. There is no evidence of mutual mistake of the parties, or of fraud on the part of the defendants. While it is now obvious that the plaintiff is not satisfied with the language used in the reservation inserted in his deed, his own testimony tends to show that the language used was in conformity with his instructions to his attorney and that he read the reservation and approved it before he executed the deed. We express no opinion as to the validity or invalidity of the reservation in plaintiff’s deed as written, nor are we now called upon to interpret the same. In our opinion, however, the evidence adduced in the trial below is insufficient to support a verdict for reformation of the deed. Hence, the judgment of nonsuit will be upheld. Affirmed.