1102 SEWELL V UNISTEb, [169 'SEWELL V. UMSTED. : Op . i nion delivered December. .21; 1925... . . REFORMATION OF INSTRUMENTS =SUFFICIENCY OF EVIDENCE.—TO obtain reformation of a deed for a ` mutual' mistake, it not essential that tile testimony be undisputed Which tends to show that the plaintiff js . entitged to the„relief, but the testimony must show . clearly and unmistakably:that, a , mutual mistake was made , whereby the deed which was executed d . ia net reflect the real intention of' either'party. REFORMATION OF I N STRUMENTS , EVIDENcE.L -Evidefice held clear and ' unmistakable that 'a mutual Mistake was madd'in'deScribing • land in a deed, justifying 'reformation of the deed: 3. EVIDENCE—STATEMENTS OF GRANTOR' BEFORE EXECUTIdN OF DEED:— In...a suit to reform,the description in a deed on the 'groimdi Of a . mutual rnistake,.the, admission of statements made by,the,grantor before execution of the deed tending to prove such ;mistake did not 'violate the rifle that prior ` Writings and 'Oral statements are
" deemed to be Merged in the written contract, aS that rule has ' nto 'application where agreements are ékeeitted thrOUgh mutual • Mistakes. , 4. WITNESSES—SUIT AGAINST DECEASED GRANTOR'S HEIRS—GRANTs.--`■ AS WITNESS. —In a suit to reform the, description in the deed of a deceased grantor, against his heirs, the grantee's testimony did • riot violate Crajvford & Moses' Dig., § 4144 (Cônst. g ched. § 2); the suit not being against the executor Or' adininistiatdi Of 'the grantor. 5. REFORMATION' OF INSTRUMENTS— L LACHES.A"suit' ag'ainst a grant-or's heirs, to reform a :description in a deed for a mutual' mistake was not .barred by laches, though•the grantor was dead and the land had greatly increased in value by the discovery of oil, where the land which défendanta claim was intended to be conveyed had also increased value, and had been leased' by'the grantor for oil and gas. . Appeal , from Ouachita Chancery . Court, First, Division; J. Y. Stevens, 'Chancellor; affirmed. Powell, &wad •& Knox and: Thos. W. Hardy, for appellant. : • . T.J. Gaughan, J. T. Siff ord,:J. E..Gaughan and E. E. .Godwin,, for appellee. : 'SMITH, J. On April 14, 1917, 'Albert Berry *owned the west half of the northwest qu'arter and the northwest
ARK. SEWELL V U MSTED. 1103 quarter of the southwest qUarter of section 33, township 15. •Snath, 'range 15. west, and oh that 'date he:executed •a deed Tor , one:of these: forty-acre traets Of land to Sid, Umsted. The:deed deseribed the . land• conveyed : as •the southwest quarter of the northwest quartet section .33, township 1 ,5 , south, range :16 west. , Later oil was .discovered in. the vicinity •of these Jaaids, and Umste.d, , the grantee .in the deed, who was a large landowner, began. to have his.fitles . examined and, perfected :With the view to making them merchantable, He had ,abstracts, of title made to his lands, and he submitted to his attorney, for exain-ination an 'abstract of . the title , to the southwest quarter of the . northwest quarter . pf • section 33,, township . .15 South, I-angel:6 west. , An examination of ,the abstract ;.iisT closed that Umsted's . grantor had no. title. whatever to this land, whereupon Unisted, so he alleged in . his ,. com- • plaint; . discoVered fOr the .. first time . thatihe deed had not only . erronemiSlY 'described the - land as, being rangP 16, • when thP range 'should have . been ' ' s, 6,tha as 15;'bUt the. deed had errone'ously 'deseribed : the . Tan4 conVeYed A:8 the southwest quarter' of the uorthweSt qUatter'of sectiOn 33; whereas the land purchased' and' -Which S. 11 oUld have , bpen described was . the northwest quartet Of the ' southWest quarter Of 'section 33.''' . • • ..•• •• , • Upon theSe allegations' tmSted prayed the CoUtt • te ref Orin the deed to co'nf orm . to the intentión Of the partieS, and 'Item 'a 'deeree awarding' the 'telief 'Ptayed'i thiS. aPpeal.' . The tract of land 'Owne:d* by l61117-' at' the time .. of , the eXecution -of the deed 'in queStiOn -Was deScribed by ' the witnesses as: being three forties 'long' and One. forty Wide, that iS, the land extended , three-fourths, of 'a mile uorth and south and one-fourth 'of a• mile east "and' west • '• It •is Umsted 's • contention • that he ..boUght :the -smith forty-acre • tract,: whereas 'the , deed conveyed: the. middle forty, leaving •one :forty: north 'and the • other f orty : south of the land described in the deed. . At the time of the execution of this deed none : of the land was• very valuable, .and. the., south forty. .w , as the
1104 SEWELL V. UMSTED. [169 loWest and least valuable, but Umsted , testified that he bought this south . forty because it had a good building site on it, and adjoined land which he already Owned. 'The middle forty described in the . deed did not join anY land which Umsted owned. . . • The eountY'surVeyOr testified`that On the 14th : and 1 -th Of' September, 1911; he ' 'made, at the request of Unisted,' a StirVey of the nerthWeSt quarter of the southwest quarter of section'33; And at the sthne time made a survey Of an adjoining forty va l ich Unisted oWned. made no survey of the middle forty. ' • •" • .A: Witness nained Joyee teStified that' he was preSent when the trade between Umsted and Berry was Made, and the • land then agreed to be sold Wa g referred AO hy bOth parties As the ' ktreine sonth forty'. 1' A witness nanied Hirsch testified that he applied to Berry for an oir lease on the 120-acre traet; and,that he .purchased from' Berry' a lease on the , West haif northwest quarter section 33, hnt Berry declined to give' a 'lease on the , south fOrty, that iS the norihwest , quarter sonthwest quarter, for the i'eaon then stated that he had PreviOUSlY sold that land to .Urasted . . Allen Fotch testified that he had . b een fo . r many years a neighbor of Berry, and that Berry discussed ,the sale of the south forty with him and told him he, ,was.going to sell, the south , forty to pay his debts, and later, ,Berry told him he had sold the south forty to Umsted.•This 'witness also testified that,„after Berry told him he had sold the south forty„ Umsted had .rails made, and that Umsted cut and removed timber from that traci. Frank Murphy testified that Berry told him he had sold the south forty to : Umsted. • .Frank, Griffin testified that he had applied to Berry to' buy the northwest quarter 'of the sOuthwest quarter of Section 33, but Berry told him he had alreadY . sold that tract to Umsted. San'. Bennett testified that BerrY tOld him he had sold the south forty to Umsted; and that Umsted made rails
ARK.] SEWELL V. UMSTED. 1105 on this forty soon after buying *a ' tract of land from Berry. ' • John Young testified that he kept books;for Thnsted at Umsted'S sawmill, and that, while he was's6 emploYed; checks were issued to pay for the labor. 'of 'cutting logs on the northwest quarter southwest quarter Section 33, but nothing was paid , as stumPage. ' ' ' Ihnsted' testified that all . the land . Was low,-but'there was :a good building site on : the northwest 'quarter souti-west . quarter, and he wanted . the land on that accoUnt: keep. any 'one from'building on it, and that this land cornered at a Place where he had a gate in a fence around a tract of land which then owned. 'Neither of the ; other two forties owned by ' Berry adjoined : his land'. 1• ;After buying this south forty , he emPloyed 'Retry tb aS . SiSt 'in cutting :rails and poles : on that land, and he : paid ietry for so doing. • The deed in qUestion was prepared , bY1 Joe' Gdok, justice' of the p'eace, from a tax receipt which Berry . furnished him . to 8ecure the descriptiOn. Vmsted testified that 'both he 'and' Berry' told Cook that the land to, be described Was the 'south forty, and that : after the' deed was written: and acknowledged before COOk it . was •deli-V-ered to Cook tf y 'file fOr record,''and Umsted neer' iead • the deed until the error in the description wa g disCoVered, when the abstraCt waS examined.' Cook testified that . be prepared the deed from' a . tai receipt given him by Berry, and that' both Uhisted 'and Berry poihted ont 'oh tlie tak receipts the' land to be described in -thO deed; and that .be wrote' into the . 'deed the description: Which had been pointed out to him. ne admitted, however, that in preparing the deed 'he 'had erroneously' written the range as 16 west, when it Should have been' range 15 weSt. ' • It appears that a suit iVas brought ih the 61tahcery court; . whiA involved an oil lease oh the sOutbWest colat-ter of the northwest quarter of seetion 33, and an intervention was filed by Umsted in this suit in which be claimed ' to c own that tract • of land by vittite of . the
1 1106 SEWELL V UMSTED. [169 veyance thereof to him from Berry. This. intervention was filed September 16, 1922. Tbis pleading .was explained by Mr. T. J. Gaughan, who prepared and filed it for Umsted.. Mr. Gaughan . testified • that Umsted told him he had bought Berry's south forty, and the withess, in preparing ,this pleading, was under the impression that Berry owned only two : forty-acre tracts,' the two together comprising the west half of the northwest guar-ter, the south forty, of which would, of C011ysg, be described as the southwest qUarter of the northwest quarter, and when witness discovered a little over two weeks later that Berry had owned three—and not:two—forty-j acre. tracts, he dismisSed the intervention and brought the.suit to reform the original deed from Berry to Umsted so that,.:when reformed,It would convey the south fOrty, which is' correctly described as the northwest quarter. of' fhe southwest quarter. . ,It was also .shown that. after . the , execution of the deed sought to be reformed Umsted paid the taxes on. the lands described, in the deed, and not • n the northwest quarter of the southwest quarter ; but Umstha testified that he paid taxes from his deeds and did not make •any examination of the descriptions to . verify their accuracy, and did •not discover the error unta`shortly before the time when this suit was . brought. • . To obtain a reformation of a deed,, it is not essential '$) that • the testimony be undisputed which tends, :to show it that the party asking that relief is entitled to it; .:but it is essential that , the testimony, in its entirety, •show clearly and unmistakably that a mutual mistake was made whereby the deed which was executed did not reflect the real intention of either party. . One of tour early cases on the . quantum of proof essential to refOrm a deed is that of McGuigan v. Gaines, 71 Ark. 614, in which Mr. Justice RIDDICK, speaking for the court, said that to establish . a mistake the evidence must be . clear, lmequivocal and decisive, and this court has since adhered to that statement .of the law in granting oy in denying relief by way of reformation. The difficulty
ARK.] SEWELL V. UMSTED. 1107 in each case is to determi u ne whether the testimony measures up to this' requirement. Withmit further reviewing the testimthly, we announce our' conclusion to •be that the te§timony set lout aheve meets the requirement stated by Mr. j ustice &BRICK, and fully Sustified the court below in awarding'the relief prayed. It i§ insisted, however, that the Court erred in admitting and' considering incOmpetent testimOny, and , that, if this incompetent testimony is' excluded, the competent testimony rethaining will not support the decree 'of the Court 'below. Iti rst in§isted that the court erred in admitting any of the' statementS made 'hy Berry before the ekeeu-tion of the deed, and in support Of this contention counsel for appellants cite cases holding that all antecedent propositions, Correspondence and prior writings, a§ well as oral 'statement§ and rppresentations, are , dedmed to *be merged into 'the Written COntract which concerns' the snbject-matter of suCh antecedent negotiations When the written contract is free of ambiguity and is itself complete. To make the hroad appliCation of-this rule' Of eVidence which counsel' for • appellants here insist upon Would result in denying reformation in any.base. This rule of evidence chiles IDA apply when the agreement 'sighed by the . parties was executed through Mutual Mistake. At § 2103 of l'omerOy's Equity Jurisprfidenee and EqUitable Remedies,*volarne 5 (2nd Ed: 1919) 'page 4739, it is said : "It i§ the generally , established rule in the United States that parOl evidence of mistake is admissible in all cases and for all purposes, notwithstanding the fundamental doctrine of the law of evidence that parol preof iS not admi§§ible between the parties to vary a written instrument, and notwithstanding thatthe effect of the parol evidence may be to enlarge the scope of an instrument 'required by the statute of frauds to he in writing. ' The authorities all require that the Parol evidence of the mistake, and•of the alleged modification,
1108 SEWELL V. UMSTED. [169 must be most, clear and convincing, * * or else the mistake must 'be admitted by the,opposite party;.the resulting proof must be established beyond a reasonable doubt. COurts of equity do not grant the high reniedy of reformation . upon a probability, nor even . upon a mere preponderance of. the evidence, but ;only upon a. certainty of the error'." • . . The . admissibility of . such testimony las , been fre-quentlyr,recognized by this . court. .. Cain, v... C,ollier, 135 .Ark..293; W elch V: Welch, 132 Ark. 227. , It is, insisted that the testimon , y Of Umsted.is . incona-petent and inadmiSsible under § 414 4. , C. & and §. 2 . ,of •. the "Schedule to, the .Constituiion, which read , as ,fallews : "In civil. actio . ns, . no witness shall be excluded begause . he is a party, to the suit , or. interested in the iSsue, to be tried. Provided,. in actions by or against executors,.administrators or guardians; in which juelgMent may 'be rendered for or against them, neither party shall be allowed to testify against the other as to , any transactions with or statements of . the- testator, intestate, or ward, unless called to , testify thereto, bY the • opposite party. , , Providecl * further; this section may be . mendeci or repealed bY the. 'General Assem ,bly." . The !testimony .shows that Berry died in 1921,..and .that ;his wife . is . also. dead . ; that they had an, only cbild :Mimed :Parthenia, who :intermarried with one Artbur Sewell, 'and 'two * children were-born of this union, one named Arthur , W., and the other John N..,Sewell.. Par-thenia is also dead, So that these , children constitute the sole ,and only heirs of Albert Berry, who .was the grantor hi the deed here, sought to be. reformed. This Suit for reforination was brought against these heirs 'and their , father, and Umsted bad had no transaction with any of . t „ h e . m a . nd , d . id not testify as to, any transactions had ,with them or concerning any statements made. by.them. . . .A syllabus in the case of Lawrence v. LaC ade, 46 Ark. 3,78,;reads: as follows: "When the widow and heirs, and not tbe administrator of an intestate, are the parties to.an action, ihetestimony of the, 'adverse party . of transactions
SEWELL v. UMSTED. 1109 with the deceased is admissible.., The widow ,and theirs are riot within, the proviso of section 2, , schedule .to the Constitution of 1874." , In Williams v, , Pi-ioleau, 123 Ark 156, Mrs. prioleau brOught suit in , ejectmeni against the widow and heirs , elf Gabe Williams to recover a tract of land which had beep conveyed tOt her by Williams and , his wife. , ,The ,angwer alleged that the 'deed Was : in fact a , inortgage,alid the eause was transerred tO the ' chiâncery CDUrt. Up011 tfie trial:there the plaintiff'Omshaad, who had aeted s dler ag'eir t in the transaetiOn, was permitted to , test4, cop-cerning the transactions with Williams and hiS . Ay4q.,bqfb-before and after the executiOn of the deed. It was insisted 'that this. testimony was: incompetent under 4144, C.,s c' z M. bigest, quoted above r, . This cbatention was elisposeddfi y the ,, court , in the following language :,,`;`:The objection, that the testimony of Erioleau,is inconipetent as relating to transactions , with, decea,sed, is withoilt,merit, i the, pit i r Ot being against the executor or administrator of his estate. Section 3093, Kirby's Digest ; Bird v. Jones, 37 Ark. 195; Mosley v. Mohawk Lbr. Co., 122 Ark. 227." See also People's Savings Bank v. McInturif, 147 Ark. 296; Britt v. Berry, 133 Ark. 589; Blackburn v. Thompson,127 . Ark. 438; Collier v. Trice, 79 Ark. 414; Strayhor9i v: ilRba11, 78 Ark. 209. It is finally : insisted that rappellee: was guilty of negligence and lachcs,, and , is ;barred on this .account , ., It is pointed out that: Berry is now dead, and that: the land, worth only $2 per acre at the time, the deed was made, is now worth $500 per acre. ' We do not think the testimony sustains this defense. It is true that the' land 'Clairned'has greatlY enhanCed in value; , but so also has the, land described in, the 'deed. ) Berry executed an oil lease on the west half of the:northwest quarter: of section 33, and, as Appears, from what has been said. , this lease covered the land described in the deed and is' effective as : such' for the reason . that: the` deed Ought td be refOrmed did net Convey any one of the,three forties mimed by Berry, for, as has_been Said, that deed
described the land as being in range 16; whereas it is an tindiSputed fact (that Berry owned . no land in that range and did not intend to convey any there. It is the presence of oil which gives all these three forties their great value: Berry executed a lease, which • is valid, for the reason just stated, on the Middle forty WhiCh his deed described, and which appellants say it was his intention to convey. It is apparent, therefore, that, if reformation is not granted, appellee' will be compelled fo take. a forty incumbered with an oil lease Which Berry had no right to execute, if he did in fact convey and intend to convey the middle forty. The doctrine of laches has therefore no application here. The equity of the case is With appellee, for to deny him relief wonld permit appellants to enjoy'the heneffis of the consideration received for 'a. lease on a tract of land' which their ancestor had, according to their own contention, previonsly Sold and conveyed to appellee. The decree is correct, and is therefore affirmed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.