Jones v. Bramwell

COSHOW, J. There is no serious contention on the paid of the defendants, who are appellants here, that the plaintiff is not entitled to a decree, unless the defendants are entitled to have the original deeds reformed because of the alleged mutual mistakes. The only controversy, therefore, is regarding the alleged mistakes in the descriptions in the two original deeds. It is the well-settled law of this state that one desiring to reform a valid contract which has been executed must prove by clear, convincing and satisfactory evidence, — (1) that a mistake was made; (2) that the mistake was mutual; and (3) that the mistake was not the result of gross negligence on the part of the parties seeking the reformation: Churchill v. Meade, 92 Or. 626 (182 Pac. 368); Boardman v. Insurance Co. of Pa., 84 Or. 60 — 320 — (164 Pac. 558); Suksdorf v. Spokane P. & S. Ry. Co., 72 Or. 398 (143 Pac. 1104); Hughey v. Smith, 65 Or. 323, 326 (133 Pac. 68); Mitchell v. Holman, 30 Or. 280 (47 Pac. 616). The defendants have not supported their claim of mistake by a preponderance of the evidence. In fact, the defendant Bramwell, himself, in addition to admitting the authenticity of said letter, neither affirms nor denies that he had told the plaintiff she could have the east half of the frontage amounting to 60 feet for $3,600. The testimony of the defendants Miller does not even tend to prove a mutual mistake in our judgment. Taken in the most favorable light for defendants, it would indicate that the plaintiff was of the impression that the defendants Miller had a wider strip of land measured by its frontage than she had. There is no evidence that the plaintiff understood at the time that her frontage was less than 60 feet, even though it be true that the defendant Bramwell indicated by his foot that the frontage of plaintiff’s land extended from the eastern boundary of said lot 2 to the center of a narrow cement walk extending from the front to a space between the houses on the two tracts from where it curves and extends to the house conveyed to the plaintiff. There was no evidence that the plaintiff accepted that mark as the boundary unless it gave her 60 feet frontage. Even if she had believed that walk to have been the boundary line, it is clear from the testimony of the defendants, themselves, including the letter as well as the original deed, that she understood she was buying 60 feet frontage. The evidence of the witnesses, Crawfords, is not convincing. They doubtless related the circumstances as they remembered them. — 321 — The oral admissions of a party or witness must always be accepted with caution. It is so easy to misunderstand and the memory of witnesses, as to conversations occurring in the past, is so frail that a statute of this state has wisely directed the courts to receive the testimony of oral admissions with caution: Section 868, subd. 4, Or. L. The plaintiff, herself, absolutely denies that the cement walk was indicated to her by the defendant Bramwell as the western boundary of the tract she was purchasing from him. She also denies the testimony of the defendants Miller and the witnesses, Crawfords, to the effect that she had a narrower tract of land measured by the frontage than the defendants Miller. The original deed was not only prepared and executed by the defendant F. S. Bramwell, but he also called an attorney who read and explained the deed in the presence of the plaintiff before it was deposited in the bank in accordance with the contract. The evidence, therefore, fails to sustain the contention of the defendants that a mutual mistake was made in executing the deed of the defendant Bramwell conveying to the plaintiff that part of lot 2 claimed by her and described in the deed. The so-called correction deed executed by the defendants Bramwell to the plaintiff is invalid. To those having no knowledge of the facts, the record of the deed creates a presumption that it was delivered: Serles v. Serles, 35 Or. 289 (57 Pac. 634). This presumption is disputable. The plaintiff was not consulted about the matter before the deed was made. The correction deed was made by the defendants Bramwell, but was never delivered to the plaintiff. It was placed on record by the defendant F. S. Bramwell, or some one for him, without either the consent — 322 — or knowledge of the plaintiff: 8 R. C. L. 1027, note 14; First Nat. Bank v. McCreary, 66 Or. 484, 490 (132 Pac. 718, 134 Pac. 1180); Telschow v. Quiggle, 74 Or. 105 (145 Pac. 11); 18 C. J. 196, § 94, p. 212, § 118, p. 213, § 121. The so-called correction deed from the defendants Bramwell to the plaintiff Fannie Jones and recorded October 1, 1919, in Deed Becords, Book 71, pages 313 and 314, Union County, Oregon, therefore, constituted a cloud upon the title of' the plaintiff Fannie Jones. The correction deed executed by the defendants Bramwell in favor of the defendants Miller was delivered and accepted by the latter. No issue is joined by the defendants Bramwell and Miller. The last-mentioned deed is valid as between them. The plaintiff is not concerned or interested in that deed only in so far as it conflicts with her title. The Circuit Court, therefore, erred in canceling the last-mentioned deed. The defendants Bramwell and the defendants Miller had a perfect right to correct any mistake in the original deed between them as long as they did not interfere with the title of the land conveyed by the defendants Bramwell in their original deed to the plaintiff: 8 R. C. L. 1027; Thomas v. Kennedy, 24 Iowa, 397 (95 Am. Dec. 740); Greve v. Coffin, 14 Minn. 345 (100 Am. Dec. 229); Fox v. Windes, 127 Mo. 502 (30 S. W. 323, 48 Am. St. Rep. 648). The possession of the defendants Miller was not such as to constitute notice to the plaintiff that they claimed any part of the land conveyed to the plaintiff by the original deed from Bramwell to her. There was no sufficient object marking the boundaries between the two tracts to constitute notice to the plaintiff that the defendants Miller were claiming, by virtue of their alleged possession, any part — 323 — of plaintiff’s tract of land as described in her original deed. Tbe cement walk referred to is not made a monument by tbe description in tbe deed nor in tbe negotiations leading up to it. The evidence convinces us that the plaintiff believed and understood that she was to have 60 feet frontage. The decree of the Circuit Court will be affirmed wherein it confirms the title of the plaintiff to the tract of land described as beginning at a point 176.4 feet on Adams Avenue southeasterly from the northwest corner of block 109 in Chaplin’s Addition to La Grande, Union County, Oregon, running thence southeasterly along said Adams Avenue sixty (60) feet, thence at right angles southwesterly one hundred and twenty (120) feet, thence at right angles to the last mentioned line northwesterly sixty (60) feet, thence at right angles to the last-mentioned line one hundred and twenty (120) feet to the place of beginning being a portion of lot two (2) of block nine (9) in Coggin’s Addition to the town of La Grande, and in canceling the deed executed by F. S. Bramwell and Mary A. Bramwell, his wife, bearing date of July 26, 1919, to the plaintiff which is of record in Book 71, Deed Records of Union County in pages 313 and 314, and holding the same to be null and void and removing the cloud cast upon the title of the plaintiff thereby; and in removing the cloud cast upon the title of the plaintiff to the above-described tract by the deed executed by the defendants F. S. Bramwell and Mary A. Bramwell, his wife, bearing date of July 26, 1919, to the defendants Chris Miller and Maggie N. Miller, his wife, which is of record in Book 71, Deed Records of Union County in page 313 thereof; annulling and voiding said deed in so far as the description therein conflicts with the description of the land conveyed by — 324 — the defendants B ram well to the plaintiff and hereinbefore described. Said decree is modified wherein it holds the last-mentioned deed from the defendants Bramwell to the defendants Miller to be nnll and void in its entirety. Neither party will recover costs in this conrt. Modified.