Van Brunt v. Ferguson

. WiNSiow, O. J. The jurisdiction of a court of equity, when seasonably invoked, to reform written instruments [546] which by mutual mistake do not express the real meaning of the parties, is very ancient and well recognized. A deed establishing a charitable trust may doubtless be thus reformed in a proper case providing the necessary parties are before the court. The necessary parties are all present in this action, namely, the original grantees in the deed, the corporation at present holding the title, the present trustees of the Consistory, a sufficient representation of the 2,700 members of the Consistory to satisfy that provision of the Code allowing one or more to defend for the benefit of all (sec. 2604, Stats. 1915), and all of the present beneficiaries of the charity. It is probably very rarely the case that a court would be justified in decreeing reformation of a deed after the lapse of eight years. In most cases probably so long a delay would be rightly regarded as inexcusable laches or rights of third persons would have intervened which worild make any change in the title inequitable. Where, however, no rights have been acquired by third persons and the lapse of time is satisfactorily explained, there is no logical reason why mutual mistakes of this nature should not be corrected even after years have passed by. In the present case the lapse of time is very satisfactorily accounted for. The deed, after its execution and recording, was never submitted to the officers of the Consistory and at once went into the personal possession of the scrivener, Mr. Pereles, and there remained; neither the grantor nor any members of the Consistory thereafter examined it or the record ; and there does not seem to have been any event naturally calling for or suggesting such an examination until the proposition of Mr. Van Brunt to endow the institution .in 1913. At this time the matter was looked up and then it was learned that provisions appeared in the deed greatly hampering the scheme of the charity. Had these been conditions knowingly imposed by the parties when the trust was created, there would of course be no room for reformation of the deed. [547] Courts will not make agreements for parties. But tbe proof is very satisfactory that both Mr. Van Brunt and tbe officers of tbe Consistory generally understood that tbe intention was to create a home for indigent Master Masons and tbeir families on a broad scale and not to grant special privileges to any particular class or body. It was natural that they should allow Mr. Pereles, who was a Mason, a lawyer, and a business man of experience, to draw the conveyance, and it was equally natural that both grantor and grantees should not scrutinize it closely but accept it without careful examination. The proof is ample that this was the case. .All had confidence in him, and it is a well known fact that laymen frequently sign documents which trusted legal friends have drawn without full examination and with the idea that legal phraseology is difficult of understanding in any event and is hardly worth the effort. It will probably always remain a mystery how Mr. Pereles came to draw the deed as he did. But whether it was the result of innocent misapprehension of Mr. Van Brunt’s intentions or was a deliberate misstatement of those intentions it is abundantly proven that the deed did not contain the provisions necessary to carry out the offer of Mr. Van Brunt or the understanding of the Consistory. The changes in the deed made by the judgment seem to be simply the changes necessary to make the deed speak in complete terms the understanding of the parties at the time, and, as the delay is sufficiently explained and no rights of third persons have intervened, the judgment must be affirmed. By the Court. — Judgment affirmed without costs.