Mendenhall v. Steckel

Brent, J., delivered the opinion of the Court. The object of the bill in this case is to foreclose a mortgage for one thousand dollars, the balance of the purchase money for the farm, named in the mortgage, which had [464] been sold to Steckel, one of the appellees, and for which a deed had been executed to him. The answer of Steckel sets up, as matter of defence, that there is a deficiency in the number of acres, called for in the deed, to a larger amount in value than the sum for which the mortgage was given ; that the mortgage is therefore without consideration, and ought not to be enforced. To this answer the mortgagee, Mrs. Mendenhall, filed a replication, alleging that by a mistake of the conveyancer in preparing the deed, the words more or less were omitted, and not inserted as they should have been, after the number of acres therein given, and that the deed thus fails to express the true agreement of the parties. Upon this replication issue was joined. The-following agreement was then entered into between the parties, and filed in the case. “It is agreed in this case for the complainant and for all the defendants, that no objection shall he taken to any defects of pleading, and that either party shall have the right to offer in evidence, subject to exceptions for all other causes, any evidence which would be material and proper to support the allegations of either party under any state of pleading.” This agreement disposes of the necessity of determining whether the technical objections, presented in the brief for the appellant, are well taken, and very clearly submits for decision in the case, first, whether from the face of the deed and the proof of the actual number of acres contained in the farm sold, the mortgagor is entitled to an abatement for a deficiency ; and secondly, whether there is proof to establish a mistake in the deed as is alleged by the appellant in her replication. The deed specifies the number of acres to be one hundred and eighty-seven. The survey of Mr. McCauley, the correctness of which is not disputed, shows that the tract in reality contains but one hundred and fifty-seven [465] acres and sixteen perches, — a deficiency of nearly thirty acres. Upon this proof the vendee, Steckel, is clearly entitled to an abatement of the purchase money for the deficiency. The case is within the decision in Marbury vs. Stonestreet, 1 Md., 152. It is there said, “ where land is sold in gross, for a sum certain, upon a statement of the number of acres, quantity must be regarded as a material consideration with the vendee.” In that case, as in this, a specified number of acres was mentioned without any qualification, “ such as more or less, by estimation, &c., to intimate that a positive declaration as to quantity was not intended,” and the vendee was allowed for the deficiency. The appellant, seeing this difficulty, asks that the deed executed by her, may be reformed, by adding after the number of acres the qualifying expression “ more or less,” upon the ground that these words were omitted through the mistake of the scrivener, and the deed, as it now stands, does not express the true agreement of the parties. Mistake is well recognized as a sufficient ground upon which to decree the reform of a deed, but the Courts exercise their power in this respect with great caution, and only upon very clear and satisfactory proof. That proof we cannot say has been furnished in this case. The agreement for the sale or exchange of this property was made by Stroud and Steckel, the former acting for his sister, the appellant. They have both been examined as witnesses, and while Stroud is positive that the agreement was “that the parties should swop property for property, without reference to the number of acres contained in each,” Steckel is equally positive that when the deed came to be drawn up the exact number of acres was fixed upon. The testimony of the conveyancer gives but little or no aid in settling this difference in the recollection of these two witnesses. He nowhere says that he was directed to qualify the number of acres mentioned in the [466] deed by adding the words more or less. He only states, as Stroud had done in his testimony, that the deed from Stroud and wife to Mrs. Mendenhall had been furnished him, from which to copy a' description of the property. That deed is exhibited in the proof and it does contain, .after the number of acres mentioned in it, the words more or less. But it is clear that the conveyancer was only to take from it the description by metes and bounds, and not the number of acres, for this deed conveys “two hundred and thirteen acres, and one hundred and eight- square perches of land more or less.” The present deed purports to convey one hundred and eighty-seven acres only. So that the conveyancer must have been furnished with a statement of the number of acres, sold to Steckel, and could not have been directed to copy them as found in the deed furnished him with the annexed qualification of “ more or less.” •. Before the execution of the deed to Steckel, a written agreement of sale was entered into between the parties, and this furnishes strong corroborating proof of the testimony of Steckel. In that agreement the property is described as “containing about one hundred and ninety acres.” Certainly some different'understanding was after-wards reached, or this description would have been followed in the deed. If the property was sold in gross there could have been no reason for changing it. Yet it was changed and the number of acres mentioned in the deed is put down at one hundred and eighty-seven, without any qualifying expression whatever. We not only think that the appellant has failed to establish by clear and satisfactory proof any mistake in the deed, but we think the decided weight of the proof is, that it truly sets out the understanding of the parties at the time it was executed. We may add, that the fact that this deed is drawn up by a regular conveyancer, mutually selected by the parties, has not been without its influence in bringing us to this conclusion. [467] (Decided February 15th, 1878.) As a ratable abatement for tbe deficiency proved will fully cover tbe amount of tbe mortgage, tbe decree of tbe Court below dismissing the bill of complaint will be affirmed. Decree affirmed.