ARK.] FOSTER V. RICHEY. 683 FOSTER V. RICHEY. 4-4243 Opinion delivered May 4, 1936. 1. REFORMATION OF INSTRUMENTS.—While to warrant the reformation of a written instrument the evidence must be clear, concise ,• and, convincing, it need not be undisputed. 2. APPEAL AND ERROR.—Evidence that small tract of 1 y , acres of land was, by mutual mistake of the parties, omitted from mort-
684 FosTkR v. RICHEY. [192 gage; held sufacient to sustain ilecree reforming mortgage, order of sale and commissioner's deed. , Appeal from Saline Chancery Court ; Sam W. Ga y-4-alt, Chancellor ; affirmed. ,Kaddell4;Waddell, for appellants. .Donhann, c6,Fullc, for -appellee. ; JonNSON,:-. C. J. Prior to . 1931, appellant, J. .C. Foster; wa indebted: tO -appellee 'Mrs. William Richey, for, borrowed mOney which indebtedness • Was seeured by 'a 'mortgage .6n :a ,certain hotel property : situated in the village of Haskell, Arkansas . : This hotel property lies south of the ' highway Which runs east and -west' through Haskell.... ...When Ahis-:indebtedness was ' first created Haskell w'as . a more: or , leSs thriving village, but by 1931 the; local ,sawmill:'industry which was its principal industrial interest :had : vanished. ...At, the .. tinie last referred' to . ' appellant's mortgage debt:to' appéllee' Was far paSt due; 'and the 'hotel property ;being ; in aailapidated 'condition; . insistent demand was made ; by ; aPpellee' '-th'at 'the indebtedness be immediately pdid: : ''Appellant was Unable' at the time to pay the mort-, gage debt; and;' tO. indliCe'di Secure an extension thereof, ; additional ; real 'estate 'seairity Was agreed upon by the parties. It is around this transaction that the present 'coriti-olersf'dii§e: 13j, 'the"' renewal contract appellant's debt i Was'' . 'eXtended-''niitil . . 1932.' ' 'Said indebtednesS not being paid"k fO'reclOSUre: action was- instituted in 1933 which resulted' a . conithissioner'S Sale apPellee for the amount of the mortgage debt, accrued interest and costs. Subsequently appellant refused to deliver possession of all the property claimed by appellee under her purchase at the commissioner's 'sale, and a survey of the property disclosed that a triangular tract containing 11/ 4 acres upon which a divelling house was located was not in fact within.the -description , contained in the mortgage, the foreclosure decree and the commissioner's :deed. Thepresent suit was instituted ',to reform the : mortgage, the aecree and the:commissioner's . deed so as ..to . .include 'this-al -A-acre tract. On a trial • of the issues -joined the: Chancellor reformed the mortgage, the former
ARK.] FOSTER v. RICHEY. 685 decree of foreclosure and the commissioner's deed from which this appeal comes. • Appellant's first insistence for reversal is that the testimony in behalf of appellee is insufficient to support the 'chancellor's' finding . and 'decree. , The rule in reference- to the reformation of written instruments is that the testimony to warrant suCh reformation must be clear, :concise and :convincing, Emer-son v. Speak,177' Ark. 1193, 9 S. W.. (2d) 780; but such testimony need not be undisputed to establish this issue of fact. Meekins v. Meekins, 168 Ark..654, 271 S. W. 18; Sewell-v. Umitead369 Ark. 1-102;-278 S. W36; Amerkean Alliance Insiirance . Co. v. Paul,173 Ark. 960, 294 S. W. 58. The testimony adduced by appellee and accepted by the trial court as Warranting the .decree of reformation was to the effect that in.1931, when • insistent demands were being made upon . appellant for • payment of the .mortgage indebtedness, appellant induced his mother to sUpply the neceSsary additional property to extend the -time of 'payment of said indebtedness ; that at that time the additional property was pointed out to appellee's husband and agent in the transaction; that the 11/4-acre tract which is the subject-matter of this controversy was specifically pointed out and designated as part of the additional security. -Judge EVANS of Benton was induced by the parties to prepare the: renewal mortgage and accompanying notes,. and he testified that. he was directed by the parties to include in the mortgage all the lands owned by appellant's mother lying between the railroad tracks.: This description necessarily _covered - the 1 1/4 -acre.tract in- 'controversy. In behalf of appellant, the testimony reflected a: bare denial that the small tract' was to be included in the mortgage. . The testiMony . above referred to in behalf. of appellee was ampl y sufficient to authorize a decree. of: reformation, and its bare denial by appellant does not militate against its clear, concise and convincing 'effect. ,.. Appellant next urges that the trial court was without power to reform its previous decree of foreclosure because as it is said such modification or reformation impairs the rule that judgments or decrees 'become final
686 .POSTER V. TtICHEY. [192 at the expiration of the .term at , which rendered._ The reformation of the- mortgage in the- .first instance is predicated upon the equitable maxim, "Eqnity treats that as done which ought to be done.' ? Stiewell v. -Webb Press Co., 79 Ark. 45, 94- R.. W. 9151'Petty -v. Gacking, 97 Ark. 217, 133 . S. W..832; see, also,. 23 . 11. 1 C. L . , § 4, p. 311. • • The decree of .reformation..acts upon .the person of the parties thereto, and no:actual impairment of the foreclosure decree is effected. The commissioner's deed .stands upon..nO higher ground.. lf parties ta .a contract intend a certain .definite result,' and by either fraud or mistake such result is•nOt manifested, equity treats that as done which should have 'been 'done and decrees accordingly. See authorities cited, !supra.. The, result just Stated 'was aceoniplished by. thiS court in the early case of Allen v. McGaughey et al., 31 Ark. 252,. and, -notwithstanding the passing of time it stands today unimpaired. Blackburn v. Randolph, 33 .A.rk. 119 ;. Ft. Smith Milling Co'. v. Mikles,.61 Ark. 123; 32 S.' W. 493, .and•M'Odica 'v. Combs, 158.Ark. 149, 249' S. W. 567, althongh not directly. in point on the 'principle stated, each reach an:analogous result. . • 'Neither can we agree that .error appears in the decree of reformation in directing that title pass 'from appellant to: - appellee to the , small- • 11 -4-acre tract' without a resale. It is•not Contended on this d . appeal that the mortgaged property if resold would probably bring .a stun in excess of the mortgage debt and cOsts.. • A resale, therefore, is not necessary to preserVe any 'equities ,existing between. the parties and their Privies.. Indeed the principle of vesting title in reformation, in the absence of prevailing equities, and under facts : and circumstances not substantially different from these here 'considered, has been definitely approved' and applied. Modioa v. CombS, supra.: No error appearing, the decree is 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.