Adolph v. Adolph

Vinje, J. It is contended by tbe defendants that it is necessary to reform and correct tbe deed and mortgage in question in order to sustain tbe plaintiffs’ recovery in this action, and hence that tbe evidence must be so clear and convincing as to leave no substantial doubt. Starting from this premise be contends with much reason tjiat the evidence does not come up to tbe required standard and that tbe judgment must be reversed. Tbe premise is doubtless correct: duly acknowledged written instruments are not to be set aside or reformed on tbe ground of fraud or mistake unless tbe fraud or mistake be established so clearly as to leave no substantial doubt. Burnham v. Burnham, 119 Wis. 509, 97 N. W. 176, and cases 215 •cited. We are unable, however, to conclude that it is necessary to set aside or reform any instrument in the present case. Tbe most that can be said is that the various written instruments are confused and incomplete. It cannot be said that they contain provisions which fix the amount of the consideration at any sum less than $8,000. The deed acknowledges receipt of a present consideration of $5,600 and contains a provision that the grantee in addition is to support the grantors during their natural lives, and in case of nonagreement pay them $2,400. This clearly points to a total consideration •of $8,000. The mortgage is for the sum of $3,400, which is .•said to be the “balance due” upon the property, and that sum unquestionably was the entire balance due at that time, because plaintiffs were to live with the defendant Adolph, and the $2,400 named in the deed was not due and would never become due except in the contingency (then doubtless regarded as remote) that the parties could not agree to live together. It seems to us much more probable that the scrivener would have drawn the papers as he did if the agreement was as contended for by the plaintiffs than if it was as the defendants contend. A consideration of $5,600 was recited in the deed, made up as follows’: $1,600 cash; $600 allowed for wages— •deducted from the claim of $3,000 for support, — and balance •of $3,400 secured by mortgage. The deed further provided that the grantee should support, plaintiffs in the old home during their natural life, and in case of disagreement pay $2,400 in lieu of support. The scrivener, after the substance of the proposed agreement was explained to him, called the attention of the parties to the fact that in case of a disagreement the plaintiffs had no security for the $2,400 due them for support, and suggested a bond. This was agreed to. So he made out a mortgage for $3,400 on the homestead forty, and a bond for $2,400, to be valid only in case of a disagreement. If it was understood by the parties, as now claimed by 216 defendants and the scrivener, that the $2,400 in the bond was-included in the mortgage, then the plaintiffs had ample security for their support and no bond was necessary. Yet all the parties testified that the scrivener suggested a bond as-security for the support in case of a disagreement. It is now claimed by the defendants that in case plaintiffs continued to-be supported till their death, only $1,000 of the mortgage of $3,400 was to be paid, but that they were to pay interest on the whole sum whether or not there was a disagreement. If that was the contract, it is difficult to see why those provisions-were not mentioned somewhere in the papers, by way of recital or otherwise. To sustain such an agreement necessitates more of a reformation and greater disregard of provisions in the papers than does the sustaining of plaintiffs’ claim. As-before stated, this is a case where the real contract made by the parties must be gathered from what was actually intended to be done rather than from the contents of the papers drawn, owing to their confused recitals and to the admitted fact that the scrivener did not carry out the intent of either party as now claimed. In our judgment the mortgage expressed the-amount that was to be paid in any event, and the bond was given to secure the value of the support in case of a disagreement. We are led to this conclusion not only by the findings-of the trial court and the weight of the oral testimony, but by the papers as actually drawn. True, there are recitals in the-papers inconsistent with this conclusion, but they are not deemed controlling for reasons already stated. We are satisfied the trial court properly found there was still due the sum of $2,400 on the purchase price and that such sum was a lien upon the entire premises. By the Oowrí. — Judgment affirmed.