ARK.] 673 DEBRA LEA, ET AL, FENTON STANLEY, GUARDIAN AD LITEM /7, LENA NIX BYRD 5-4255 415 S. W. 2d 336 Opinion delivered May 29, 1967 1. REFORMATION Ok INSTRUMENTS —MIST AKE OF FACT—* W EIGHT & FICIENCY OF EVIDYNCE.—E v idence necessary to reform a deed on the ground of mistake of fact must be clear, cogent and convincing. 2. REFORMATION OF INSTRUMENTS—MISTAKE OF FACT—WEIGHT & SUF.- FICIENCY OF EVIDENCR—Appellee held entitled to have the deed in question reformed on the ground of mutual mistake of fact where the evidence was clear, cogent and convincin g of scrivener's mistake in failing to show the property was conveyed to ap-pellee and her husband for life with the remainder over to appellee's daughter by a previous marriage, as the parties intended. Appeal from Dallas Chancery ,Clourt, Jim Rowan. Chancellor ; affirmed. Fenton Stanley, for appellants. James C. Cole, for appellee. CARLETON HARRIS, Chief Justice. The question in this litigation is whether a deed should be reformed because of an alleged mutual mistake of fact. Appellants, Debra Lea, Donna Sue Lea, Sandra Lea, and Michelle Lea, are minor grandchildren of appellee, Lena Nix Byrd, appellee herein. Mrs. Byrd sued in equity to form a deed executed from Dave Wilkins and Lula Wil-kins to R. D. Nix and Lena Nix on December 10, 1949.1 Both the granting clause and. the habendum clause recited that the conveyance was to R. D. Nix and Lena Nix and her bodily heirs Mrs. Byrd instituted suit in 1966 to reform the deed, asserting that a mutual mistake of fact had been made, in that the intent of the parties,was l At the time of the execution of the deed, Mrs. Byrd was married to R. D. Nix. Mr. and Mrs. Nix were later divorced, and appellee married Lawrence Byrd.
674 LEA V. BYRD [242 that said deed convey the property purchased to R. D. Nix and Lena Nix for life with the remainder over to Carolyn Hutto (Lea), daughter of appellee by a previous marriage. Appellants, through their guardian ad litem, Fenton Stanley, answered, denying all allegations in the complaint (except those allegations appearing as a matter of public record), and denying that appellee was entitled to any relief. On trial, after the taking of evidence, the court found that appellee had sustained her contention, and entered a decree finding that a mutual mistake had been made in the execution of the original deed; further, that appellants had never owned any interest in the land, vested, contingent, or otherwise, and their only apparent interest was a result of the mistake made. The court ordered the deed reformed to reflect the grantees as R D. Nix and Lena Nix for and during their natural lifetime with the remainder to Carolyn -Hato-and-hW-heirs -an -d-assigns-forever.- From thi-s- decree, appellants bring this appeal. The deed, of course, created an estate tail under our statutes and decisions. T-he question, thus, is whether it is legally possible to reform, in this state, because of mutual mistake, a deed which created an estate tail. Arkan-sas has followed the policy that, as a general rule, equity will not reform a contract or a deed occasioned simply by a Mistake of law. Louis Werner Saw Mill Company v. Sess•oms, 120 Ark. 105, 179 S. W. 185. Appellee, in support of the court's finding, argues, in this court, that such a deed can be reformed on proper proof, whether the mistake was a mistake of law, or a mistake of fact,' though the mistake of fact argument is given greater emphasis. Under the view that we take, it is not necessary that we discuss the question of a:mistake of law, for we think that proof of a mistake of fact was established by clear, cogent, and convincing evidence, such proof being necessary before a deed can be reformed. Meeks v. Borum, 240 Ark. 805, 402 S. W. 2d 408.
ARK.] LEA v. BYRD 675 Mrs Byrd testified as follows : She had one child, Carolyn Hutto (Lea) by a marriage previous to her marriage to Nix. In 1946, she underwent a complete hysterectomy, and knew that thereafter she would be unable to bear children.' In 1948, she married Nix, and the two desired to-buy some land. They became interested in 200 acres owned by Mr. and Mrs. Wilkins, and decided that they would like to purchase that land. The witness had money of her own before the second marriage, which was to be used as part of the purchase price. An attorney in Malvern advised that a deed made to Mr. and Mrs. Nix would create an estate by the entirety, and the lands would become the sole property of the survivor. Appellee wanted her daughter, Carolyn, to have an interest in the property, and was not willing to purchase same without assurance that the daughter would have an interest. Another lawyer was consulted. who confirmed the opinion of the first attorney, each also telling her that to carry out her desire, the deed could be made to Mr. and Mrs. Nix for life, with the remainder to her daughter. 'Appellee stated that she and her husband agieed upon this type of conveyance. Upon being told that Mr. and Mrs. Wilkins had the deed ready which could be obtained at the bank at Sparkman, she and her husband went to the hank for the purpose of closing the transaction ; however, sbe was informed that the deed named only her and her husband as grantees. "*** When they told me the deed was made out to me and R. D., I backed out. I told them at the bank that I wanted a deed made to me and R. D. for life and then to my daughter, Carolyn Hutto. I left and went back home." She subsequently told Wilkins the reason for the refusal of the deed. "A few days later, I heard from the bank. Was 2A certificate from the Chief Medical Records Librarian of the University of Arkansas Medical Center corroborated this operation.
676 LEA V. BYRD [242 told that the deed and the other papers were Teadi, R. D. and I went to the bank. I asked if they had the papers fixed right this time and sort of laughed. He told me it was to me and R. D. for life and then to Carblyn. I didn't question it further and paid the money and signed the note." Her recollection was that her conversation was with a Mr. Hayes at the bank, who reported that Mr. and Mrs. Wilkins had signed another deed before a: 'Juki.'Ce of the Peace, and had brought the instrunient 'to 'The bank. The payments made by Nix and wife were paid to the bank, and credited on an indebtednesS 'oWed ' by Wilkins to that institution, and the deed was not turned over to appellee and her husband until January, 1, ■ Mr. _ N _ i _ x and appellee were divorced in 1958 7 and 1 deeded his interest in' the pr6ty—td-het:.--SliVglite7d that she did not learn about the mistake in. :the deed from Wilkins until early in 1966, when she had alread ■1 y , agreed to sell the land . to a Mr. , Shepherd; And,-in fact, had received a partial payment' Of $5,00.00. , The testimony of appellee is rather convincing, and in line with other evidence offered,: whie `h Win be- hei.e-after mentioned. The only weak part , of her :cOntention is the fact that it was a long number , of years' before the mistake was discovered. Yet, 'this iS somewliat , Uri-derstandable, the evidence reflecting that she And her husband did not receive the deed until ove , r foil . , years after its execution, the bank having had poSsOSionl„until p the note was paid in full. It is also understandable t, having refused one deed, because it was not properly drawn, and having been assured that the second'ohe was drawn in accordance with her request, Mrs. Byrd : accepted the word of the bank official (who probably*as sincere in his statement; that the deed had ..heeri_ pre-3 Apparently the status of the title was discovered at_a time when title to the property was being examined preparatory, to _the Shepherd sale. Mrs. Byrd testified that her daughter, CarOlyn, was willing to convey her interest to appellee.
ARK.1 LEA v. BYRD 677 pared in a manner to carry out her instructions. It must be remembered that Mrs. Byrd was not a lawyer, but a persori totally untrained in, and unfamiliar with, legal terminology, and it is undisputed that the deed was prepared by someone other than an attorney or agent for appellee. Aside from. the testimony of Mrs. Byrd, there are other , facts which support her version_ For one, Mr. and Mrs. Wilkins, when notified of the purported error, -imme , d iately executed a Correction Deed, conveying the property , in the manner contended for by Mrs. Byrd. :Ohe nf , the strongeSt circumstances in her behalf is the fact kms , pro a within a Month after the purchase of the perty, Mr. and Mrs. Nix also pm_ chased 40 acres of l „ an d from Mrs. Elsie Richardson. the language in the , deed being , in accord with the language that, Mrs. By rd says was intended for the Wilkins deed. The grant-a ing clause, , states,"***do hereby grant, bargain, sell and C , on a vey . unto the said R. D. Nix and Lena Nix, arid upon the death of, both R. D. Nix and Lena Nix, then unto 'Carolyn Hutt iind unto lier heirs and assigns forever***." 'rTlie:RichardSdn deed was a completely typewritten instrument, evidently ' i)repared by someone familiar with _Jegal requirements. ' A warranty deed form was used by the scrivener of the Wilkins deed with the granting . and habendum clauses filled in by such scrivener, ap- _ pa a refitly either an employee of the bank or the Justice of the Peace who , acknowledged execution of the instru-,rnent. , In t S'lzerwin-Williams Company v. Leslie, 168 Ark. 1049, i 272 S. W. 641, we held: "***Mrs. Fowler was entitled to a reformation of the deed of trust so as to include the lands in contro-yei'sy; iriider the uncontroverted proof that it was the mutual iritention of all parties to that deed of trust that such lands should be included and that it was omitted merely through oversight of the scrivener who prepared the deed of trust."
678 [242 In Stinson v. Ray, 79 Ark. 592 96 S. W. 141, we said: According to the terms of their agreement a right of way eight feet wide, north and south, and extending due east from Depot Street, a distance of forty feet, and lying south of and adjacent to the land sold should have been conveyed. The draughtsman who drew the deed evidently did not understand the contract of the parties; and the grantor executed it without discovering the error. The evidence adduced at the hearing, clearly, unequivocally, and decisively proves these facts." The proof is actually uncontradicted that a mutual mistake was made in the original Wilkins conveyance to Mr. and Mrs. Nix, and we consider the evidence to be clear, cogent, and con _ vincing _ . Affirmed.
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