Mock v. Mock

334 S.E.2d 409 (1985)

E.E. MOCK and wife, Alpha Mock v. Jess MOCK and Ancil Mock (Tester).

No. 8523SC85.

Court of Appeals of North Carolina.

October 1, 1985.

Hall & Brooks by John E. Hall, Wilkesboro, for plaintiffs-appellants.

Vannoy & Reeves by Jimmy D. Reeves, West Jefferson, for defendant-appellee Ancil Mock (Tester).

PHILLIPS, Judge.

While a written instrument may be reformed on the grounds of mutual mistake, the mistake that the law requires is that of both parties to the instrument. Coppersmith v. Aetna Insurance Co., 222 N.C. 14, 21 S.E.2d 838 (1942). The mistake of one party not induced by the fraud of the other is not enough. Crawford v. Willoughby, 192 N.C. 269, 134 S.E. 494 (1926). In this case no legal grounds for reforming the deed in question have either been pleaded or proved by plaintiffs and the order of summary judgment dismissing their claim was properly entered. Accepting plaintiffs' verified complaint as an affidavit and assuming that all the facts stated in the *410 complaint are within their personal knowledge, what it amounts to is a claim and testimony that Ancil Mock's name was put in the deed due to the mistake of the plaintiffs and the attorney who drew the deed; which is not a "mutual mistake," but an unilateral mistake. See 76 C.J.S. Reformation of Instruments Sec. 28(d)(2), p. 368 (1952). Plaintiffs' reliance upon Cameron v. Cameron, 43 N.C.App. 386, 258 S.E.2d 814 (1979) is misplaced. Though that case also involved a scrivener's mistake, the holding was not that a scrivener's mistake and that of one of the parties to an instrument is a basis for reformation; the holding was that the mutual mistake of the parties to the instrument in question had been shown by defendant's evidence to the effect that he and the plaintiff agreed that her name would not be in the instrument.

Affirmed.

WELLS and WHICHARD, JJ., concur.