DAVIDSON v. BAILEY

DAVIDSON v. BAILEY
1916 OK 146
155 P. 511
53 Okla. 91
Case Number: 4754
Decided: 02/08/1916
Supreme Court of Oklahoma

DAVIDSON et al.
v.
BAILEY et al.

Syllabus

¶0 1. REFORMATION OF INSTRUMENTS--Deeds--Proof Required. To justify the reformation of a deed, failing to conform to the agreement of the parties thereto through mutual mistake, the proof should be clear, unequivocal, and decisive. Mere preponderance of evidence is not enough; the proof must establish the facts to a moral certainty, and take the case out of range of reasonable controversy, but need not be so certain as to go beyond any possibility of controversy.
2. SAME--Mutual Mistake--Sufficiency of Evidence. Evidence examined, and held sufficient to show that the deed given by plaintiffs to defendant did not conform to the agreement of the parties through mutual mistake justifying its reformation.

Vernor & Vernor, for plaintiffs in error.
Thea E. Lipscomb and Sumner J. Lipscomb, for defendants in error.

SHARP, J.

¶1 This is an action commenced April 29, 1911, to reform a deed given May 13, 1904, by plaintiffs to defendant, which deed described the property conveyed as the "south seventy-five (75) feet of lot seventeen (17) in block No. sixty-one (61)" in the city of Muskogee, Okla., whereas plaintiffs claimed that it should have described it as the north 14 feet of lot 18 and the south 61 feet of lot 17, in block 61, in the city of Muskogee, Okla. In plaintiffs'''' petition it was alleged that the mistake was mutual, and that after discovery thereof, some years subsequent to the execution of the deed, defendant refused to rectify it; wherefore plaintiffs asked that said deed be reformed by the court so as to show the true description of the land sold by plaintiffs to defendant. Defendant answered, denying any mutual mistake in the description of the property, and, on the other hand, alleged that the property described in said deed was the true and identical premises intended to be bought by defendant from plaintiffs. Trial was had to the court September 10, 1912, and judgment rendered in favor of plaintiffs, from which judgment defendant brings error to this court. Subsequent to the docketing of the case in this court plaintiff in error died, and an order of revivor was made in the names of Rose Drake Davidson, administratrix of her estate, and Rose Drake Davidson, Hattie Drake Travis, Pearl Drake Briggs, Sheridan Drake, children, and Dorothy Perry, granddaughter, as sole and only heirs of said deceased. The question of the right of parties to a conveyance to have its terms corrected so as to conform to the intention of the parties at the time of the sale or conveyance has on several occasions been determined by this court. In Hope v. Bourland,

"Proof establishing a fact so thoroughly as to take it out of the range of controversy must necessarily be of an exceedingly high order. In fact, such proof could rarely, if ever, be produced. There are cases, however, where the proof could be made so clear and decisive as to establish the fact to a moral certainty, and to leave no room for a reasonable doubt in the minds of men of ordinary intelligence. * * *"

¶2 We think the evidence in this case sufficiently meets the requirements as to the degree of proof required to reform a written instrument. That the defendant should make lasting improvements, such as fences, house, and sidewalk, upon and around property which she knew all the time to belong to another, and that she failed to so improve property adjacent thereto, which she now says she at all times owned, is so different from the ordinary conduct of property owners, whether they be educated or illiterate, as to impress us, as it undoubtedly did the trial court, with the fact that a mistake was without doubt made in the description of the property intended to be conveyed by the deed. It is true that defendant paid the taxes on the property claimed by her, but this can be attributed to the mistake in the deed, rather than to any legal claim she may have had to such property. The judgment is affirmed.

¶3 All the Justices concur.