#### Thacker, Appellant, *v.*Matthews et al., Appellees.

(No. 3408

Decided February 26, 1942.)

*Mr. Davicl A. Peiros*and *Mr. B. E. Bothwell,*for appellant.

*Mr. John E. Matthews*and *Messrs. Vorys, Sater, Seymour S Pease,*for appellees.

Geiger, P. J.

This matter is before this court upon •appeal from a judgment of tbe Court of Common Pleas upon matters then at issue between the parties.

The.amended petition of Orrin Thacker recites, in substance, that on the 13th day of September 1933, the ■defendants Lindsay Matthews and Edna M'atthews, his wife, in consideration of the cancellation of an indebtedness of $2,025 and of the payment of $75 in ■cash, executed to the plaintiff, Orrin Thacker, a warranty deed conveying in fee simple certain lands lo*315cated in the state of Michigan. This instrument covenanted that the premises were free from all incumbrances except a mortgage held by the grantee,, and it is stated that the conveyance was made by the grantors, and the additional $75 given, in order to-satisfy the mortgage and note secured thereby. Defendants warranted the premises unto Thacker against the lawful claims of all persons whomsoever, except as aforesaid.

Plaintiff further says that at the time of the execution of the covenant by the defendants there was outstanding, as a valid lien, a mortgage executed by Matthews to one Harry E. Schmidt securing $600, principal and interest, and, also, that the sum of $300 was-due in delinquent taxes.

It is alleged that subsequent to the execution of the-covenants one Poole, assignee of the mortgage given to Schmidt, filed a suit in Michigan to establish his mortgage as a first lien, during' the course of which litigation plaintiff made expenditures in the sum of' $250.

It is alleged that by the judgment rendered by the-court in Michigan, the mortgage lien held by Poole,, as assignee of Schmidt, was held to be a first lien on the property after taxes and costs of the proceedings..

Plaintiff says that the covenant against incumbrances has been breached and that by virtue of the Michigan court’s order to sell, he has been deprived of the title to his property, warranted by defendants, to his damage in the sum of $2,100.

On Nov. 27, 1940, defendants answered and for their first defense made certain admissions and stated that they advised plaintiff and that plaintiff had full knowledge in regard to the mortgage lien of $600 held by-Schmidt on the premises and that with full knowledge thereof plaintiff prepared his own deed after having-*316obtained such information; and that defendants were induced to execute the deed in reliance upon the express promise of the plaintiff that he would pay the mortgage lien of Schmidt, which promise and representation was a fraud upon the defendants, since plaintiff never intended to and did not fulfill such promise.

As a second defense defendants set up the proceedings in Michigan and allege that the plaintiff set forth the same facts in that action and- sought to enforce the covenant against the defendants, and that in that action in the state of Michigan a judgment was rendered against the plaintiff on his cross-petition. It is alleged that the parties to the present litigation are also the parties as were involved in the Michigan case and that the issues are one and the same and have been determined and adjudicated in favor of the defendants.

The cases cited, upon which the court below relied in its first opinion, generally state that in order to maintain an action for reformation of a deed upon the ground of mutual mistake, the proof of such mutual mistaké must be clear and convincing; and that if the nature and contents of the instrument are fully comprehended by both parties at the time of its execution, it can not be reformed. If an oral agreement or other matter is purposely left out of the instrument, the same will not be reformed. Where there is no fraud or mistake in the preparation of the instrument and it appears that the parties signing understood its language and purport, it can not be reformed on the faith of a contemporaneous oral promise which was not kept. For further statements of the principle see *Sawn*v. *Orrill,*decided by the Montgomery county Court of Appeals, on January 20, 1942.

On the 17th day of May 1941, the judge of the Court of Common Pleas based his opinion upon *Craw*
      *317
      *ford*v. *Edison,*45 Ohio St., 239, 13 N. E., 80; *Grant*v. *Kinney,*117 Ohio St,, 362, 159 N. E., 346; *Long*v. *Moler,*5 Ohio St., 271; *Kunkle*v. *Beck,*1 Ohio App., 70; *Hott*v. *McDonough,*3 C. C., 177, 2 C. D., 100, and other cases cited, and concluded:

‘ ‘ So in the case at bar there is in the amended answer no allegation of fraud or mistake *in the omission*of the alleged promise of plaintiff that he would pay the mortgage lien then held by Schmidt, *from the deed*and there is no prayer *for reformation*of the deed; on the other hand, the allegation of the plaintiff’s knowledge of the existence of the Schmidt mortgage and his express promise and representation that he would pay the mortgage lien of Schmidt is set forth purely as defensive matter. * * * The case being submitted as purely a law case, we think we are forced to the conclusion that in ‘such case parol evidence is inadmissible to prove such agreement’ of the plaintiff to pay the Schmidt mortgage or in any way to contradict or vary the terms of the covenant; this requires judgment for the plaintiff.” (Italics ours.)

The court, in considering the defense of *res judicata*based on the prior action in Michigan, concludes that the same is not a bar to this action, and in this we concur.

Thereafter, on July 7, the defendants moved to amend their amended answer by making certain insertions both in the first defense and in the prayer. The court sustained this motion and ordered that the defendants’ amended answer be amended by inserting the matters set out in the motion as they relate to the Schmidt mortgage.

It was ordered that the prayer of the answer be amended to include a prayer that the plaintiff’s petition be dismissed and that the deed be reformed to *318exclude the Schmidt mortgage from the conveyance of warranty, etc.

The essential element of the amendment is that the warranty failed to include the mortgage lien of Schmidt and did not conform to the agreement of the parties, that such omission was a fraud upon the defendants, and that the deed did not include the mutual agreements and understanding of the parties. The defendants prayed that the petition be dismissed and that the deed be reformed to exclude the Schmidt mortgage from the covenant of warranty.

The matter with the amendment to the answer again came before the same judge. He announced an opinion on the 3rd day of July 1941, wherein he stated that, following the rendition of his former opinion on the 17th day of May 1941, the defendants filed not only a motion for new trial but a motion for leave to amend ;- that *from the evidence*it appeared that Matthews held the fee to the Michigan land and Thacker held a mortgage thereon in the amount of $1,500; that Schmidt held a second mortgage in the amount of $600; and that Thacker threatened to foreclose the mortgage and' thereupon a quitclaim deed was prepared, but Thackerrefused to accept the same, demanding a warranty deed. The defendants would not give a warranty deed because of the existing mortgage to Schmidt, of which mortgage Thacker had knowledge. Both defendants-said they would not sign the prepared deed because they owed Schmidt, whether the mortgage was recorded or not, whereupon Thacker said, “I will pay the Schmidt mortgage,” and in reliance upon that promise Matthews signed the warranty deed. The court stated that it was convinced of the truth of the statements-made by Mr. and Mrs. Matthews, and asked: “Under these facts may the deed be reformed so as to except from the general warranty the assumption of the *319Schmidt mortgage by Thacker?” The court then ■cited a number of authorities, among them being 53 ■Corpus Juris, 927, Section 39, to the effect that if a party objects to a writing on the ground that a stipulation is omitted or because it does not conform to the agreement and the other party makes a verbal agreement and assures him that the matter in controversy will be arranged to carry out their prior and present understanding, the party to the agreement will be entitled to relief. There are cases cited in Corpus Juris which permit the verbal stipulation to be proved and ■enforced and the written agreement reformed on the ground that the refusal to abide by the whole agreement, and to attempt to enforce that portion only which is written, constitutes a fraud which equity ■ought to prohibit.

In the case of *Coger’s Exrs.*v. *M’Gee,*5 Ky. (2 Bibb), 321, 5 Am. Dec., 610, it is held, in substance, that for a party either to produce a mistake or prevent- it from ■being rectified under the declaration that he would ■observe the understanding of the parties, as verbally expressed and requested to be inserted in the writing, and afterwards to attempt an advantage from its ■omission in the writing, is fraudulent and ought to be relieved against.

There are numerous cases allowing the verbal stipulation to be proved and enforced and the written agreement to be reformed on the ground that the refusal to abide by the whole agreement, and the attempt to enforce that portion only which is written, constitutes a fraud which equity ought to prohibit.

The court, after reciting the facts as above stated, entered the following judgment: “Wherefore, it is by the court ordered that plaintiff’s petition be dismissed * * *. The judgment herein being rendered *320for tlie defendants no new trial is necessary, as requested by defendants in their motion.”

Orrin Thacker, the plaintiff, filed a “notice of appeal on the law from the order of the court of July 16, 1941, dismissing plaintiff’s petition; ordering the answer amended; and ordering the deed changed and then considering only evidence previously introduced at the trial under the old pleadings, refusing Thacker any opportunity to plead as against the new issues or to introduce evidence thereunder; and the rendering of final judgment thereon against plaintiff, Thacker.” No bill of exceptions was filed by the plaintiff, appellant herein.

Section 11564, General. Code, provides that when the decision is not entered on the record, or the-grounds of the objection do not sufficiently appear in the entry the party excepting must reduce his objections to writing and file them in the cause not later than forty days after the overruling of the motion for new trial, or the decision of the court *when the motion for a new trial is not filed.*No motion for a new trial was filed.

In the case of *Tenesy*v. *City of Cleveland,*133 Ohio St., 251, 13 N. E. (2d), 122, it is held:

“1. When an appeal is taken on questions of law, it is mandatory that a bill of exceptions be filed in the trial court within the forty-day limitation prescribed by Section 11564, General Code, to enable a reviewing court to consider the contents of such bill.

‘ ‘ 2. Where such bill of exceptions is not filed in the trial court within the time so prescribed, and the' ei'rors assigned are such as can be disclosed only by a bill of exceptions, the reviewing court has no alternative but to affirm the judgment.”

If the errors assigned are such as are manifest *321without the bill of exceptions, this court may consider the appeal.

To determine whether the appeal may be considered in spite of the fact that no bill of exceptions has been filed, we examine the appellant’s short final reply brief in which the statement is made that no record was made of the testimony; that the errors complained of are shown in the record without any bill of exceptions; and that the record shows that the error complained of was the admission of *any*testimony contrary to the original pleadings and to vary a warranty deed.

Counsel state that the record fairly shows that the defendants gave to plaintiff a straight warranty deed and that they both knew that defendants (the sellers) had also a mortgage out on the property, and the query is made by counsel as to whether a straight warranty deed may be voided by showing orally that the buyer stated orally that he would pay off the mortgage where the pleadings make no issue of fraud other than that.

It is further conceded that the pleadings fairly show that the buyer refused a quitclaim deed, but whether he did or not the sellers voluntarily gave a straight warranty deed, knowing well what they were giving.

If as claimed by counsel the errors assigned are manifest in the pleadings we may consider the same even though the bill of exceptions may be lacking.

Under the amendment to the answer and the prayer, we are of the opinion that the written deed, in which there appeared a warranty against the Schmidt mortgage, may be reformed, on the ground that the refusal to abide by the whole agreement and an attempt to enforce that portion only which is written, constitutes a fraud which equity ought to prohibit.

No matter whether we consider the case as being one which we may not entertain unless there is a bill *322of exceptions or whether we consider it as one in which the errors are manifest without a bill of exceptions, we arrive at the same conclusion, and we find no error in the ruling of the court below.

*Judgment affirmed.*

Hornbeck, J., concurs.

Barnes, J., concurs in judgment.