strument must be clear and convincing." And the court must be satisfied beyond a reasonable doubt of the mutual mistake of both parties. But where a mutual mistake is conceded, the ordinary rule as to conveyances controls as to the consideration, the performance and the prejudices. The party alleging the mistake should show exactly in what it consists." Sec. 486. When a court of equity should interfere. A court of equity will always interfere and will reform a deed which includes property the parties never intended to be conveyed, and which the grantor was under no obligation to convey, and which the grantee in good conscience has no right to retain.10 The rules of law applicable to the reformation of instruments conveying or incumbering real estate, are plain and founded in good sense. These rules are well settled, and where the agreement is reduced to writing and omits or contains terms or stipulations contrary to the common intention of the parties, the instrument will be corrected so as to conform to the real intention of the parties. The mistake must be mutual and common to both parties to the instrument. It must appear that 11 Critchfield v. Kline, 39 Kan. 721, 18 Pac. 898; Baltzer v. Railway, 6 Sup. Ct. Rep. 216; Grizwold v. Hazard, 26 Fed. 135; Gilmartin v. Urquart, 1 So. (Ala.) 897; Frederick v. Henderson, 7 S. W. (Mo.) 186; Little v. Webster, 1 N. Y. Sup. Ct. 315; Rossin v. Lynn, 23 Fed. 107; Cimmins v. Monteith, 16 N. W. (Ia.) 591; Wachendorf v. Lancaster, 14 N. W. (Ia.) 316; Ahlbon v. Wolff, 11 Atl. (Va.) 799. 7 Bodwell V. Heaton, Kan. 31, 18 Pac. 901; Brundidge v. Blair, 23 Kan. 482; Schaefer v. Wells, 69 Kan. 25, 76 Pac. 436. 8 Conoway v. Gore, 24 Kan. 389. 9 Hope v. Bourland, 21 Okla. 864, 98 Pac. 583. 10 Burton v. Handy, 54 Kan. 13, 37 Pac. 108; 2 Pomeroy's Eq. Jur., Sec. 843; Beson v. Nearkve, 33 N. W. 38; Canedy v. Marcy, 13 Gray, 373; Stidwell v. Anderson, 21 Conn. 139; Clayton v. Freet, 10 O. S. 544. 11 Hope v. Bourland, 21 Okla. 864, 98 Pac. 580; Horner v. Mowine, 20 Wall. 478, 22 L. Ed. 595; Kerr on Fraud and Mistake, 419. both have done what neither intended.12 And where the minds of the parties have never met there is no contract, and, hence, none to be rectified.13 To warrant the court to reform any instrument of conveyance, the mistake must have been material, and must not have occurred by the fault of the party asking its reformation.14 Sec. 487. The instrument may be reformed and specific performance decreed. The Supreme Court of this State in a very recent decision held that when, through accident or mistake, from an executory contract or instrument, founded upon a valid consideration, for the sale of real estate, there was omitted matter intended to have been included, it may be reformed and specific performance decreed.15 The minority of the courts, not having full equity jurisdiction hold that a contract within the statute of frauds may not be reformed, so as to extend the contract beyond what its terms import.16 However, the majority of the American courts which have full equity jurisdiction hold that equitable relief by way of reformation may be applied with 12 Hope v. Bourland, 21 Okla. 864, 98 Pac. 580; Rooke v. Kensington, 2 K. and J., Sec. 753; Eaton v. Benton, 34 Beavan, 496. 13 Hope v. Bourland, 21 Okla. 586, 98 Pac. 580. 14 Marshal v. Homier, 13 Okla. 264, 74 Pac. 368. Equity will not subject the property of one party to the payment of the debt of another; and a mistake will not be corrected in an equitable action, unless the plaintiff shows by his bill that without such correction it will suffer loss or injury; but even then the court will not enter a decree that will injure another in order that the plaintiff may not suffer loss. Drovers, etc., v. Bank, 19 Okla. 302, 91 Pac. 850. 15 Atwood v. Mikesa, 29 Okla. 69, 115 Pac. 1,011. 16 Atwood v. Mikesa, 29 Okla. 69, 115 Pac. 1,011; Elder v. Elder, 10 Me. 80, 25 Am. Dec. 205; Glass v. Hulbert, 102 Mass. 24, 3 Am. Rep. 418; Dwight v. Pomeroy, 17 Mass. 303, 9 Am. Dec. 148; Attorney. general v. Sitwell, 5 L. J. Exch. 86, 93 I., Y. and C. Exch. 559. out restriction, because the purpose of the statute was to promote justice and prevent wrong, and not to hinder justice.17 Sec. 488. The rule as to bona fide purchasers. The rules of law applicable to the reformation of instruments of conveyance apply as to the original parties only, and equity will not interfere as against bona fide purchasers.' 18 Sec. 489. The lien of a mortgage reformed prior to the lien of attaching creditors, when. A mortgage lienholder on property attached may intervene where the defendant in the action is served by publication only, and makes default, and such intervenor may ask that the mortgage which purports to be a lien on a different piece of land may be reformed on the ground of mutual mistake of the defendant and himself in the description, so that it may be a lien on the property attached as was the intention of both parties to the mortgage.19 Attaching creditors on land cannot resist the proper applicant to have the mortgage reformed so as to make the lien cover the property attached and become a prior lien.20 17 Atwood v. Mikesa, 29 Okla. 69, 115 Pac. 1,011; Thompson v. Marshall, 36 Ala. 504; 76 Am. Dec. 328; Blackburn v. Randolph, 33 Ark. 119; Murphy v. Rooney, 45 Cal. 78; Morrison v. Collier, 79 Ind. 417; Dutch v. Boyd, 81 Ind. 146; Moate v. Buchanan, 11 Gill and J. (Md.) 314; Smith v. Greely, 14 N. H. 378; Tilton v. Tilton, 9 N. H. 385; DePeyster v. Hasbrook, 11 N. Y. 582; Gouverenor v. Titus, 6 Paige (N. Y.), 347; Wishall v. Hall, 3 Paige (N. Y.), 313; Gower v. Sterner, 2 Whart. (Pa.) 75; Flaigler v. Peiss, 3 Rawle (Pa.), 345; Blodgett v. Hobart, 18 Vt. 418, 2 Pom. Eq. Jr. (2d ed.), Secs. 864-866. 18 Byrne v. Ft. Smith, 1 Ind. T 680, 43 S. W. 957. 19 Bodwell v. Heaton, 40 Kan. 36, 18 Pac. 901. 20 Bush v. Bush, 33 Kan. 556, 6 Pac. 794. Sec. 490. A deed may be corrected so as to make the grantee assume existing mortgages, when. The court has power to correct a mutual mistake of the parties so as to make the grantee assume and agree to pay mortgages against the real estate conveyed.21 Sec. 491. Party seeking reformation must have superior equity. It is a maxim in equity that he who seeks equity, must do equity; and he who comes into court asking for the reformation of some instrument of conveyance must stand upon some equity superior to that of the party against whom he seeks it.22 Sec. 492. Mutuality not always an essential requisite. Where the terms of the bargain and sale of real estate have been agreed upon by the parties and thoroughly understood by each of them, but the terms and conditions of the performance of the contract by mistake were not entered into the written contract, so as to express the intention and meaning of the parties, as they previously understood it, a court of equity will correct the instrument of conveyance so as to make it conform to the contract originally agreed upon. And where the terms of the agreement prior to the making of an instrument of conveyance were understood and agreed upon, it is not always an essential requisite that each of the parties understand it exactly alike.23 Sec. 493. Equity will interfere sometimes to correct a mistake of law. Generally speaking, courts of equity will not reform instruments so as to correct a mistake of law, but such courts 21 Stephenson v. Elliott, 53 Kan. 550, 36 Pac. 980. And when so corrected, a personal judgment may be secured against the party assuming the mortgage. Ibid; Burn ham v. Larkin, 36 Kan. 246, 13 Pac. 398; Holcomb v. Thompson, 50 22 Connoway v. Gore, 21 Kan. 725. 23 Drummond v. Krebs, 8 Kan. App. 180, 55 Pac. 478. do sometimes interfere to correct mistakes of law occurring to parties. A well known and able jurist has said on this subject: "Wherever a person is ignorant or mistaken with respect to his own antecedent and existing private legal rights, interests, estates, duties, liabilities or other relation, either of property or contract or personal status, and enters into some transaction, the legal scope and operation of which he correctly apprehends and understands, for the purpose of affecting such assumed rights, interests or relations, or of carrying out such assumed duties or liabilities, equity will grant its relief, defensive or affirmative, treating the mistake analagous to, if not identical with, a mistake of fact." 24 Sec. 494. Estoppel. as There can be no estoppel preventing the reformation of an instrument as against one whose situation is no different from what it would be had there been no mistake therein.25 24 Jeakins v. Frazier, 64 Kan. 267, 67 Pac. 854; 2 Pom. Eq. Jur., Sec. 849; Renard v. Clink, 91 Mich. 1, 51 N. W. 692. The equitable remedy of reformation is not limited to cases of mutual mistake. Where mistake, unmixed with fraud, is the basis of the relief sought, it must be a mistake common to both parties; but the remedy is available whereby the mistake of one party, induced by the fraud of another, there is omitted from a deed, land, which it was stipulated, should be conveyed, and which the first party was led to believe was covered by the description. Cox v. Beard, 75 Kan. 369, 89 Pac. 671; Welles v. Yates, 44 N. Y. 525; Husted v. Van Ness, 158 N. Y. 104; 52 N. E. 645; Kyle v. Fehley, 81 Wis. 67, 51 N. W. 257, 29 Am St. Rep. 866; Place v. Johnson, 20 Minn. 219, 229 (Gil., 198); Crooks ton Imp. Co. v. Marshall, 57 Minn. 333, 59 N. W. 294, 47 Am. St. Rep. 612; Simmons Creek Coal Co. v. Doran, 142 U. S. 417, 12 Sup. Ct. 239, 35 L. Ed. 1,063; Higgins v. Parsons, 65 Cal. 280, 3 Pac. 881, Kinney v. Ensminger, 87 Ala. 340, 6 So. 72; Jones v. Warren, 134 N. C. 390, 46 So. 740; Archer v Lumber, 24 Ore. 341, 33 Pac. 526; McCormick v. Woulph, 11 S. D. 252, 76 N. W. 929; Goodenow v. Curtis, 18 Mich. 298; Citizens v. Judy, 146 Ind. 322, 43 N. E. 259; Sanford v. Gates, 21 Mont. 277, 53 Pac. 749; Dane v. Derber, 28 Wis. 216, 24 Am. & Eng. Enc. of Law, 652; 2 Current Law, 1,492; 3 Pom. Eq. Jur., Sec. 1,376; 3 Page on Contracts, Sec. 1,239; 42 Cent. Dig. 1,111. 25 Detweiler v. Swartley, 74 Kan. 88, 86 Pac. 141. |