Hook v. Craighead

Bates, Judge, delivered the opinion of the court. This is a suit originally brought by McClure, in his lifetime, upon a promissory note made by the defendant to the plaintiff’s intestate. The defendant, by answer, admitted the execution of the note, upon which some payments had been made, and alleged that the consideration of the note was the purchase by the defendant, from McClure, of a lot in the town of Fulton, for the conveyance of which McClure gave him a title bond, conditioned that the conveyancé should be made upon payment of the note; that, by error and misake, the lot was improperly described in the bond; that he [408] had tendered to McClure full payment of the note, and demanded a conveyance of the lot, which had been refused; and that he had paid into court the balance due on the note, subject to the order of the court in this cause; and praying that the mistake in the bond be corrected so as to conform to the contract between him and McClure ; that the heirs of McClure be made parties, and that the title to the lot be passed from them, and vested in him, the defendant. The plaintiff moved that the answer be stricken out, for the reason that it contains no answer to the plaintiff’s action. The court sustained the motion, struck out the answer, and gave judgment for plaintiff, from which judgment the defendant appealed to this court. In the case of Leitensdorfer v. Delphy, 15 Mo. 160, it is stated that the power of a court of equity to reform an instrument which, by reason of a mistake, fails to execute the intention of the parties, is unquestionable. In this case the defendant could set up an equitable defence or counter-claim ; and the matters shown in the answer are such as, in a separate suit brought by the defendant, would require a court of equity to decree the reformation of the contract, and specific execution and performance of the contract so reformed. No reason is perceived why the court having jurisdiction of the whole subject, should not exercise it so as to do complete justice between the parties and put an end to the litigation. Judgment reversed and cause remanded. Judges Bay and Dryden concur.