Showman v. Miller

Le Grand, C. J., delivered the opinion of this court. The bill in this case was filed for the purpose of having corrected an alleged mistake in a deed, executed on the 17th day of October 1837, by the defendants to the complainants and another, now deceased, as trustees. The bill sets out that the citizens of a particular neighborhood being anxious to erect a school-housej agreed with the defendants for the purchase of the land mentioned in the deed, “and that it was fairly and distinctly understood between the said Peter Showman and wife, and the said neighbors, parties to the said arrangement, that the said purchase was of the fee-simple,” “and the said deed was to be executed, conveying to the said trustees the said piece of land in fee-simple.” It also alleges, that although the deed was intended to convey the fee-simple, it “has, by the mistake of the draftsman of the said deed, in omitting to insert therein the apt and legal words of inheritance, been drawn and executed in such form as to convey only a life estate to the said trustees and the successors or survivor of them.” The defendants, in their answer, ‘•'utterly deny that the said deed was intended to be anything other than it was, or that it was intended to convey to the said grantees, as individuals, or in their own right.” And they also “deny that there was any mistake in the drawing of said deed. ’ ’ The only witness whose testimony can be deemed important to the inquiry submitted tons is that of John Brantner, the draftsman of the deed. He says, in reply to the fifth interrogatory propounded to him, that “the neighbors were all assembled on the ground which had been marked out for the school-house, and Showman being there, he, (Showman,) remarked, “that trustees should be selected in order that the deed might be made.

The persons present then immediately elected Messrs. James Malone, (now deceased,) Daniel Miller and Henry Nykirk, the trustees. After the election of the trustees, this deponent, at the request of Showman, wrote the deed; and this deponent saith, that he understood Showman to say and agree that the property was to be conveyed to the trustees and their successors forever. There was nothing in the instructions by Showman that showed any intention that ⁴⁸⁵ the property conveyed in the deed was ever again to return to Showman.” Although a court of equity will, upon proof of fraud, mistake or surprise, raise an equity by which an ag’reement will be rectified according to the intent of the parties, it will not interfere where the instrument is such as the parties themselves designed it to be.

If they voluntarily choose to express themselves in the language of the deed, they must be bound by it. McElderry vs. Shipley, et al., 2 Md. Rep., 35. In t!ie case before us, the aid of the court is invoked exclusively on the ground of mistake. There is no allegation in the bill, of fraud.

Where fraud is relied upon, it is essential that it should be averred. In the case of mistake, the Court of Appeals, in the case of Watkins vs. Stockett, 6 Harris & Johns., 445, adopting the decision of Lord Thurlow, in Irnham vs. Child, 1 Bro. Ch. Rep., 92, observe, “that the proof of a mistake should be established as much to the satisfaction of the court as if it were admitted, and that the difficulty of doing this is so great, that there is no instance of its prevailing against a party insisting there is no mistake.” The defendants in the present case “utterly deny” there was any mistake in the character of the deed, and insist it was what it was intended to be.

The testimony of the draftsman does not in anywise show a different intention, but merely declares he did not understand the property was ever again to come to the appellants. He does not say he was so told by either the appellants or any one else, but merely gives an opinion to this effect. Such evidence surely falls far short of the fullness required where an alleged mistake is sought to be proven and rectified. But it is