Cain v. Collier

HART, J., (after stating the facts). The law of the case is settled by the opinion in Welch v. Welch, 132 Ark. 227, 200 S. W. 139, in which most of our earlier decisions on the question are cited. In that cáse we held that equity will reform a written instrument where there is a mutual mistake or where there has been a mistake of one party accompanied by fraud or other inequitable conduct of the other party. We also held that parol evidence is admissible in a suit to reform an instrument in cases like this but that the evidence to warrant reformation must be clear, unequivocal and convincing. Tested by these well known principles of law, we are of the opinion that the decree should not be reversed. • It is true a greater number of witnesses testified that Collier pointed out the boundary lines of the wagon yard saying that they extended from street to street and that this would include the little triangular strip of ground in controversy. They also stated that the wagon yard could not be successfully operated without this strip because a wagon could not be turned around in it. It was shown, however, that the wagon yard was 75 feet wide and 150 feet long and it is fairly inferable that wagons could be turned around in a yard of this size. Besides that, three witnesses, including the defendant, testifie that they had operated the wagon yard without the triangular strip and that wagons had been turned around in it. Two of these witnesses testified that one of them told the plaintiff, before he purchased the wagon yard, that the little triangular strip in controversy was not a part of the wagon yard and that .’Collier only had a lease on it. Collier furnished Cain an abstract of title to the property sold him and this showed the property to be 75 feet wide and 150 feet long. The abstract itself conveyed to the plaintiff notice that the strip of ground was in the form of a rectangle and excluded the idea that the small triangular strip was a part of it. Moreover, it was not likely that the plaintiff would have agreed to give a warranty deed to the strip of ground to which he only had a lease. When all the testimony in the case is read and considered together, it can not be said that the plaintiff has proved his case by testimony of such a clear, unequivocal and convincing character as to justify a reformation of. the deed, and, especially, when to do so would require us to reverse the findings of fact on that issue made by the chancellor. The decree will, therefore, be affirmed.