Ker v. Evershed

The opinion of the Court was delivered by Fenner, J. On June 8, 1868, Robert J. Ker mortgaged to A. Cliiapella four certain lots of ground to secure the sum of twelve thousand dollars represented by four promissory notes, payable one year after date. In 1878, Mrs. Emelie Everslied, as holder of two of said notes, and F. B. Henriquez, as holder of one, brought separate suits, via ordinaria, against Robert' J. Ker, who was duly cited, but suffered judgment by default to go against him. The petitions hied in said suits set forth the debts claimed and’the mortgage by which they were secured, the act of mortgage being annexed to and made part of the petition, and prayed for a judgment for the amount due with recognition of their mortgage on the property described in the act. Judgments were rendered in both cases decreeing that the plaintiff “ do have and recover of said Robert J. Ker, the sum of ($6500 in one case and $600 in the other), with interest, costs and attorneys’ fees, and recognizing plaintiff’s special mortgage and hypothecation on the property described in plaintiff’s petition, without prejudice to tlie right and concurrent mortgage of the holder of the outstanding notes described and mentioned in plaintiff’s petition.” Upon both of these judgments, after they had become final, and after due notice to the defendant, writs of fieri facias were issued in ordinary form, commanding the sheriff “ that by seizure and sale of the property, real and i>ersonal, rights and credits of defendant, Robert J. Ker, you cause to he made the sum of, etc.” Under these writs the sheriff seized the property described in the act of mortgage, and, after due notice and advertisements and the observ [17] anee of all due regularity of proceeding, tlie same was sold at public outcry and was adjudicated to Mrs. Evershed, as the List and highest bidder, for the price of $5400 cash, which sum, after deducting costs' taxes and attorneys’ tees, was rateably distributed between the two plaintiffs. In 1887, Wm. R. Ker, administrator of Robt. J. Ker, joined by certain mortgage. creditors of Robert J. Ker, filed this suit, In which they allege that, being the owner of tlie property described in the mortgage to Chiapella, with other contiguous lots, lie had, prior to said mortgage, changed the lines and dimensions of said lots, which are designated as A, B and C, and had made improvements upon them, making his home of lot A and part of lot B, and dividing the balance of lot B and lot C into several properties fronting on Claiborne street; that although it appears by the act of June 8,1868, that he granted a mortgage in favor of Chiapella on the whole of lots A and C; yet, in reality, it was his intention to grant, and the intention of Chiapella to accept, a mortgage only on the lot A and part of lot B such as it stood, inclosed within dividing fences, forming a distinct and separate property from the rest; but that through a clerical error and inadvertence, contrary to the intention of the contracting parties, the notary, in drawing up said act of mortgage, erroneously extended it over the whole of lots A and C. We need not state the allegations as to the rights of the co-plaintiffs, because they have none except such as are derived from Ker subsequently to the Chiapella mortgage, and must stand or fall with him. They proceed to aver the facts relative to the judicial sale above set ’ forth, but allege that the purchaser, Mrs. Evershed, under her title took possession only of the lot A and part of lot B, and never set up pretensions to any more; and that said Ker always retained possession of the lot C and the rest of lot B. They allege that these errors were only recently discovered; that tlie defendants refuse to acknowledge or correct them ; and they pray for a judgment amending and correcting the description in the act of mortgage and in the sheriff’s deed of sale, so as to conform to tlie intentions of the parties, and recognizing defendants as owners only of lot A and part of lot B, and the succession of Ker as owner of lot C and the rest of lot B. When parties reduce their contracts to writing, and when the terms of the writing exhibit no uncertainty or ambiguity as to the nature, the object and the extent of the engagement-,.it is presumed that the writing-expresses the true, full and complete undertaking of the parties. [18] When the instrument is free from any patent or latent ambiguity, parol evidence cannot be received to vary or contradict it. . Courts of equity, however, have established a special branch of jurisdiction under wliicli, when it is made clearly to appear that, through fraud or error, the written instrument has been made to express a different purpose from that which the parties had agreed on and intended to embody therein, such mistake may be corrected, and the writing may he reformed to express the real intention of the parties. But in this last case both reason and authority require that, before such relief can be afforded, there must be very clear proof of the different antecedent agreement, and of the error in committing it to writing. Now, in the instant case there is not the slightest ambiguity in the description of tire property mortgaged. The description is not only accurately given by metes and bounds, but it refers to the acts under which Ker himself acquired the properties and under which they were conveyed to him by the same identical description. This reference indicated conclusively to Ker that he was mortgaging his property according to the lines and divisions which it had when he acquired Ms titles, and not according to the new lines and subdivisions wliicli lie himself had subsequently established. If he read the act there was no excuse for error, and if lie did not read it. such gross negligence would leave Mm with still less excuse. Allen vs. Whetstone, 25 Ann. 850; Watson vs. Bank, 22 Ann. 14; Keough vs. Foreman, 33 Ann. 1439. It may well be assumed that, he directed the mortgage by this description, because it made it easier for liim to exhibit and trace his title, and obviated the necessity of identifying Ms new subdivisions with the titles by which lie acquired; especially as lie was only granting a mortgage wliicli he, no doubt, expected to pay and' cancel. These considerations greatly weaken the presumptions which plaintiffs rest upon the improbability of Ker’s intending to mortgage his property in lots, breaking up and destroying liis own subdivisions. But what proof is there that the written agreement does not- express the true intentions of the parties, or that they ever entered into any different agreement whatever Everybody connected with the transaction had passed away before this suit was brought. Ker was dead, Oliiapella was dead, the notary was dead; Mrs. Everslied was dead. No witness-appears who had the slightest cognizance of the transactions between the parties. The. clear and unambiguous written instrument stands as the sole repository of the agreement- and intentions of t-lie [19] parties, with not a. wmrd of evidence to show that they ever made Or intended to make any other. Mrs. Everslied -was not even a party to the act. While it does appear that Chiapella acted as her general agent, it is not proved that he acted as her agent in accepting the mortgage. Though she acquired the notes through him and he held them for her, it does not appear when Or how she acquired them. Plaintiffs’ whole case rests upon" the presumptions above referred, resting upon tiie improbability of Ker’s mortgaging his property in such shape, the weakness of which has already been suggested; and upon the additional fact that after her purchase at the judicial sale she took possession only of lot A and part of lot B, and never disturbed Ker’s possession’’ of the rest of the property. We know not how this’ error on her part may have been induced. Suffice it to say that Ker’s possession and her acquiescence therein not having 1‘Jsted long enough to form the basis of prescription, and being wholly inconsistent with the written title; it cannot have effect to overthrow' the latter. Milliken vs. Minnis, 12 La. 546; Babineau vs. Cormier, 1 Mart. U. S. 456; Broussard vs. Duhamel, 3 Id. 11. Cases may be found and are. quoted by plaintiffs’ counsel, in which circumstances such as those here relied on, have been given weight in interpreting ambiguous contracts and in determining the true meaning of ambiguous descriptions of property. Others exist in which even contracts unambiguous on their face have been corrected on clear proof that the parties had actually entered into' a different contract which they had intended to embody in the writing drawn, but which, through error or fraud, the writing did not correctly set forth. But no case can be produced in which an unambiguous written contract has been set aside’ Or substantially reformed on circumstantial evidence so slight as that here presented, urged only after the lapse of nineteen years, and after the death of every party to the transaction. Ambiguous contracts may be explained and controlled by unambiguous circumstances; but unambiguous contracts cannot be destroyed by ambiguous circumstances. It might, moreover, W'ell be doubted whether the plea of error, liowever clearly proved, could have been listened to after the judicial proceedings,'in which the. existence and verity of the mortgage, as executed, w'ere distinctly put at issue, and which resulted in a formal contradictory judgment recognizing the same. But, even passing-over this obstacle, another presents itself in the form of those judicial proceedings. The plaintiffs therein, as we have seen, [20] proceeded riá ordinaria and obtained a personal money judgment against Ker, which they executed by writs of fi. fa., under which they seized and sold this property. Suppose the mortgage were reformed or even annulled, or suppose they had never had any mortgage at all, they had an unquestionably valid judgment for money which they had the right to execute upon this or on any other property of Ker. Defendants’ title rests, not upon the mortgage, but upon the judicial sale, and we fail to discover any ground on which that sale can be attached. It is vain to say that, Mrs. Evershed supposed she was buying a different, property from that which was sold. Titles under judicial sales are not to be regulated by the mistakes or errors of purchasers unless such errors were induced by some defect in the proceedings themselves, or by some fraud or misrepresentation. The purchaser takes what"is sold and what he buys, no more and no less. Suppose the error had been on the other side, and the sheriff had seized and sold a less estate, could Mrs. Evershed, on alleging that she supposed it, was a larger one, claim title to more than was sold i Finally, the judicial sale was made, not only under the judgment, of Mrs. Evershed, but also under that of Henriquez, and he is not even made a party to the suit. His mortgage rights, his judgment, and the judicial sale thereunder must, stand unaffected by this proceeding, and they alone are sufficient to sustain the title of defendants. If anything could add force to the foregoing, it -would be the fact that the whole property which was mortgaged as security for $12,000, brought at the judicial sale only $5400, a sum considerably less than the amount then remaining due under the mortgage, so that Mrs. Evershed, after her purchase, still stood a considerable loser by the transaction. Whether that, loss has been otherwise made good the record fails to advise us. If not, we are now asked to increase it by taking from her part of the property brought in, which was already insufficient to satisfy her claim. It is, therefore, adjudged and decreed that the judgment, appealed from be annulled and reversed, and that there now be judgment, in favor of defendants, and rejecting the demand of plaintiffs at. their cost in both courts.