Stiles v. Willis

Alvey, C. J., delivered the opinion of the Court. The bill in this 'case was filed to have a mortgage deed reformed, by having a personal covenant inserted therein, as to one of the parties, alleged to have been omitted by mistake of the draftsman. The mortgage was made on the 12th of March, 1875, by Edward S. Harrison and Jane S. Harrison, his wife, and others, to William Lee Stiles, trustee of George Stiles, to secure the sum of $3,300, payable on or before the first ⁵⁵⁴ day of June, 1879. In the mortgage it is recited, that “whereas, the said Emory Forman Stiles, Hester Tabb Stiles, Sophia J. Clark and Jane S. Harrison, are each indebted unto the said William Lee Stiles for various sums of money loaned by him to them at different times, amounting in the aggregate to $3,300; and whereas, they are anxious to secure to him the prompt payment of their said several indebtedness on or before the first day of June, 1879,” etc. It is shown by the proof, indeed admitted by the answer, that the proportion of the mortgage debt due from Mrs. Harrison was the sum of $2,000.

The mortgaged property belonged to Mrs. Harrison and others, but in which Edward S. Harrison had no other interest than that of husband of Mrs. Jane S. Harrison. It was necessary to the validity of the mortgage, so far as Mrs. Harrison was concerned, that her husband should join with lier in the execution of it; but it was not essential that he should covenant personally for the payment of the mortgage debt, unless it was so expressly agreed with the mortgagee. The covenant in the mortgage is, that “the said Emory Forman Stiles, Hester Tabb Stiles, Sophia J. Clark and Jane S. Harrison, hereby covenant that they will each pay their respective portions of the said indebtedness unto the said William Lee Stiles, trustee aforesaid;” the name of Edward S. Harrison being omitted from the covenant; and the question is, whether that omission was by mistake, or whether it was because Mr. Harrison did not think proper to join in the covenant. The prayer of the bill is, that the mortgage may be reformed, “so that it shall appear that the said Edward S. Harrison entered into the covenant to pay the money loaned to him, for the repayment whereof he was liable;” and not simply that his name may be inserted in the covenant to give it effect as against his wife.

Both William Lee Stiles and Edward S. Harrison are dead; the former having died in 1878, and the latter sub ⁵⁵⁵ sequently, but some time before the bill in this case was filed. The bill was not filed until the 26th of January, 1886, nearly eleven years after the making of the mortgage; but it is alleged that the omission in the covenant was not discovered by Elizabeth M. Stiles, the trustee appointed in the place of William L. Stiles, deceased, and by whom the bill has been filed, until within a few days before filing the bill for the correction of the alleged mistake. In contradiction of the mortgage, it is alleged that the $2,000 portion of the mortgage debt, was in fact loaned to Edward S. Harrison, and not to his wife; and that it was intended that he should have joined in the covenant for the payment of the money; but that the omission of his name from the covenant was the mistake of the draftsman who prepared the mortgage. These allegations of the bill are flatly denied by the answer of the defendants; and the burden of proof, of course, is upon the complainant.

The principle upon which Courts of equity interpose to afford relief in this class of cases, is one of great strictness, and is never applied except where the case is made out to the entire and complete satisfaction of the Court. Where the proof is of such character as to leave no doubt whatever in the mind of the Court, that mistake has intervened, and the instrument sought to be rectified is variant from the actual contract of the parties, there can be no doubt, at this day, of the competency of a Court of equity so to amend the instrument as to make it conform to the real intention of the parties. But in such cases it is not enough to show the intention of one of the parties to the instrument only; the proof must establish, incontrovertibly, that the error or mistake alleged was common to both parties. In other words, it must be conclusively established, that both parties