This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
While a conveyance is presumed to have been made with the full and free consent of the grantor, and correctly to embody his intention, it may be shown that this is not the case, by reason of mistake, fraud, duress, or undue influence.
If the parties are in agreement as to what they wish and intend to do, but there is a mistake in the preparation of the instrument, so that it fails correctly to embody their intention, equity will reform or rectify the instrument accordingly.97 And so a mistake in the words in the conveyance limiting the interest in the land which it was agreed should be conveyed may be corrected, as when there is an omission of words of inheritance.98 Likewise, the fact that the conveyance pur95-96. See Baum v. Lynn, 72 Miss. 932, 30 L. R. A. 441, 18 So. 428.
97. Ivinson v. Hutton, 98 U. S. 79, 25 L. Ed. 66; Brown v. Cranberry Iron & Coal Co., 84 Fed. 930, 28 C. C. A. 567; Allia T. Hall, 76 Conn. 322, 56 Atl. 637; Kerr v. Couper, 5 Del. Ch. 507; Gruing v. Richards, 23 Iowa, 288; Canedy v. Marcy, 13 Gray (Mass.) 373; Benson v. Markoe, 37 Minn. 30, 5 Am. St. Rep. 816, 33 N. W. 38; Sparks v. Pittman, 51 Miss. 511; Barataria Canning Co. v. Ott, 88 Miss. 771, 41 So 378; Leitensdorfer v. Delphy, 15 Mo. 160, 55 Am. Dec. 137; Grant v. Baird, 61 N. J. Eq. 389, 49 Atl150; Bank of Union v. Redwlne, 171 N. C. 559, 88 S. E. 878; Huss v. Morris, 63 Pa. 367; Melott v. West, 76 W. Va. 739, 86 S, E. 759.
98. Chamberlain v. Thompson, 10 Conn. 243, 26 Am. Dec. 390; Kyner v. Boll, 182 111. 171, 54 N. E. 925; Drum v. Drum, 251 111. 232, 95 N.e. 1071; Whittaker v. Lewis, 264 Mo. 208, 174 S. W. 369; Mcmillan v. Fish, 29 N. J. Eq. 610; Higinbotham v. Burnet, 5 Johns Ch. (N..Y.) 184; Henley v. Wilson, 77 N. C. 216; Clayton v. Freet, 10 Ohio St. 544; Brock v. O'dell, 44 S. C. 22, 21 S. E. 976; Lardner v. Williams, 98 Wis. 514, 74 N. W. 346.
Ports to convey land other than that which both parties intended should be conveyed, or that the land as conveyed differs from that sold, is ground for reformation."
Occasionally it is stated that, in order to justify the reformation of an instrument as not correctly expressing the agreement of the parties, there must have been a mutual mistake in the preparation of the instrument.1 This, however, appears questionable. If the instrument fails correctly to express the agreement of the parties, there should be a right to have it reformed, regardless of the person or persons whose mistake caused this result.2
If the instrument as executed expresses the agreement of the parties, it is no ground for reformation that in arriving at such agreement both parties labored under the same misconception.3 Nor will the instru99. Tillis v. Smith, 108 Ala. 264, 19 So. 374; Felton v. Leigh, 48 Ark. 498, 3 S. W. 638; Stevens v. Holman, 112 Cal. 345, 53 Am. St. Rep. 216, 44 Pac. 670; Bartt v. Deuel, 11 Colo. 494, 19 Pac. 471; Barnes v. Peterson, 136 Ga. 364, 71 S. E. 163; Keeley v. Sayles, 217 111. 589, 75 N. E. 567; Baker v. Pyatt, 108 Ind. 61, 9 N. E. 112; Bottorff v. Lewis, 121 Iowa, 27, 95 N. W. 262; Critch-field v. Kline, 39 Kan. 721, 18 Pac. 898; Holbrook v. Schofield, 211 Mass. 234, 98 N. E. 97; Fisher v. Dent, 259 Mo. 86, 167 S. W. 997; Blair v. Mcdonnell, 5 N. J. Eq. 327; Bush v. Hicks, 60 N. Y. 298; Pelletier v. Interstate Cooperage Co., 158 N. C. 403, 74 S. E. 112; Carroll v. Ryder, 34 R. I. 383, 83 Atl. 845; Walker v. Dunlop, 5 Hayw. (Tenn.) 271, 9 Am. Dec. 787; Abbott v. Flint's Adm'r, 78 Vt.
274, 62 Atl. 721; Carlson, v. Druse, 79 Wash. 542, 140 Pac. 570; Baxter v. Tanner, 35 W. Va. 60, 12 S. E. 1094; Fuchs v. Treat, 41 Wis. 404.
1. Chapman v. Lambert, 176 Ind. 461, 96 N. E. 459; Dougherty v. Dougherty, 204 Mo. 228, 102 S. W. 1099; Robinson v. Korns, 250 Mo. 663, 157 S. W. 790; Welles v. Yates, 44 N. Y. 525; Waslee v. Rossman, 231 Pa. 219, 80 Atl. 643; R. M. Cobban Realty Co. v. Chicago, M. & St. P. R. Co., 52 Mont. 256; 157 Pac. 173; 6 Pomeroy Eq. Jur. Sec. 675.
2. See 11 Columbia Law Rev. at p. 301, article by Roland R. Foulke, Esq.
3. Holland Blow Stave Co. v. Barclay, 193 Ala. 200, 69 So. 118: Toops v. Snyder, 70 Ind. 554; Wise v. Brooks, 69 Miss. 891, 13 So. 836; Pittsburg Lumber ment be reformed, if made on a valuable consideration, merely because it fails to accord with the intention or expectation of one party, provided it accords with the intention of the other, and with the terms of the agreement between them.4
The fact that the failure of the instrument as written to embody the intention of the parties arises from a mistake of law, as distinguished from a mistake of fact, does not prevent a reformation of the instrument to accord with the true intention of the parties.5 But on the other hand, if the parties, by reason of a mistake of law, deliberately select a particular form of instrument, or deliberately insert particular language therein, neither of them can afterwards assert that the instrument as executed does not represent their agreement.6 In other words, if the conveyance is in the form agreed on, the fact that, had the parties understood the law, a different form would have been agreed on, is not ground for reformation, while if the form of conveyance was not agreed on, but merely the end to be attained by the conveyance, the fact that this end is, by reason of a mistake of law, not attained by the conveyance actually executed, may be ground for reformation.
Such a mistake on his part, not induced by the donee.11 That a gift is not ordinarily revocable is generally recognized, and yet in but few cases, presumably, could the donor seeking to revoke not assert that he made the gift under a mistaken impression, as regards the merits of the donee, for instance, or his own ability to dispense with the subject of the gift.
Co. v. Shell, 133 Tenn. 466, 189 S. W. 879.
4. James Holcombe & Rainwater v. Furr, 126 Ark. 251, 190 S. W. 444; Ruby v. Ewing, 49 Ind. App. 520, 97 N. E. 798; Allen v. Roanoke R. & Lumber Co., 171 N. C. 339, 88 S. E. 492; R D. Johnson Milling Co. v. Read, 76 W. Va 557, 85 S. E. 726.