8299

#### SULLIVAN v. MOORE.

Re-fokiuing Deeds. — Under the proof in this case the trial Judge was correct in refusing to set aside the findings of the jury, and in ordering a deed conveying a life estate by omission of the word “heirs” in the habendum and premises, conveying a valuable tract of land for valuable consideration, drawn by a layman, to be re-formed so as to convey a fee simple.

Before C. C. FeaTherstonE, Special Judge, Laurens, April term, 1910.

Affirmed.

Action by Rosalie A. Sullivan against John Moore. Plaintiff appeals.

*Messrs. Grier, Park*and *Nicholson*and *Richey & Richey,*for appellant.

*Messrs. Grier, Park*and *Nicholson*cite: *Does the testimony show mutual mistake?*2 Strob. Eq. 154; Bail. Eq. 494; 21 S. C. 235; 46 S. C. 221; 49 S. C. 241; 67 S. C. 280; 44 S. C. 22; 4 Rich. Eq. 307.

*Messrs. Simpson, Cooper*and *Babb,*contra.

August 26, 1912.

The opinion of the Court was deliv- ' ered by

Mr. Justice Woods.

In this action to recover possession of a tract of land, the decree in a former appeal adjudged that on the trial of the issue of legal title the Circuit Judge should have directed a verdict for the plaintiff, on thes.e undisputed facts: on 26th August, 1886, the plaintiff, being the owner of a tract of land containing two hundred acres, conveyed the entire tract to Mrs. Alice P. *Greer;*on October 31, 1892, Mrs. Greer conveyed the ninety acres in dispute to- Mrs. P. O. V. Martin; and on January 23, 1896, Mrs. Martin conveyed to^ the defendant, John Moore. The deed of conveyance from the plaintiff to Mrs. Greer did *306not express either in the premises or the *habendum*clause that it was a conveyance to her and her heirs, though the warranty was to her, “her heirs and assigns.” The Court held that under the common law rule, which still prevails in this State, Mrs. Greer took only a life estate, and upon her death, in 1906, the legal title would revert to Mrs. Sullivan; and further,' that there was no evidence to' support the defense of estoppel. 84 S. C. 426, 65 S. E. 108.

The defendant set up also the defense of mistake, alleging that the parties to- the deed from Mrs. Sullivan to' Mrs. Greer intended that it should convey a fee simple, and demanded judgment that the deed be re-formed accordingly. This last defense was not passed on by the Circuit Court at the first trial, and in disposing of the former appeal this Court left that issue open. On this defense at the second trial the following were the issues submitted by the Court and the responses made by the jury:

> “Eirst. Did Rosalie Sullivan intend to convey only a life estate by the deed ? No. .

> “Second. Was the word 'heirs’ left out of the deed by mistake of both parties and did the parties to the deed intend to convey a fee simple (absolute) estate? Yes.

> ' “Third. What was the value of the land at the time of the execution of the deed? $2,000.”

The Circuit Judge made an order refusing a motion for a new trial and directed a re-formation of the deed. The eight exceptions raise only the one question, whether the Circuit Judge should have directed a verdict in favor of the plaintiff on the issues submitted or withdrawn the issues from the jury, and should have refused to re-form the deed on the ground that there was no evidence of such a character as would warrant the inference that there was mutual mistake and that the intention was to convey and to' take a fee simple title.

The plaintiff can have no complaint of the view taken by the Circuit Judge of the degree of proof necessary to war*307rant a finding of mutual mistake and a judgment of re-formation, for, in charging the jury, he expressed his conviction on the subject in this language: “But before a court of equity will re-form a solemn instrument it must be shown by evidence which is the most clear and convincing not simply it was a mistake on the part of one of the parties, but that it was a mutual mistake, that both parties intended a certain thing, and that by mistake in the drafting of the paper they did not get what both parties intended.”

Mrs. Sullivan and her husband testified that she intended to convey only a life estate and that it was so understood by all the parties to the transaction. But the circumstances, we think, negative that intention, and show clearly and convincingly that the intention was to- convey a fee simple. According to the testimony of the plaintiff and her husband, the deed was made at the request of Hewlett Sullivan, the uncle of plaintiff’s husband, and of Mrs. Greer, the grantee, in consideration of the satisfaction of a mortgage held by Hewlett Sullivan against the plaintiff. The' testimony shows, and the jury found, that the land was worth at the time about $2,000. Although Mrs. Sullivan and her husband testified on this trial that the mortgage had been reduced by gift of Hewlett Sullivan to a little less than $1,000, on the former trial Mrs. Sullivan testified that there might have been $4,000 or $5,000 due; and what was still more significant, there was nothing to show the gift of three-fourths of the mortgage debt except the indefinite statement of the plaintiff and her husband. W. R. Osborne testified that he heard the negotiations between the plaintiff and Hewlett Sullivan, and that in speaking of the conveyance of the land, nothing was said about conveying only a life estate. The plaintiff and her husband testified that from 1886, when the conveyance was made to- Mrs. Greer, until 1907, after Mrs. Greer’s death, they never spoke to each other, their children, or any one else of the fact that Mrs. Sullivan would get the land back on the death of Mrs. Greer. It is highly improb*308able under the circumstances that such a valuable interest in land so near by would not be mentioned if the husband and wife supposed that it'existed. - ' ■

Mrs. Greer died in November, 1906, and even then not a word was said by the plaintiff in assertion of her- claim until the defect was- brought to her attention by Mr. Babb, who had discovered it in examining the title for a prospective purchaser, and she was asked to sign a paper perfecting the form of the title into- a fee simple.

The deed of conveyance to Mrs. Greer was written by Jared B. Sullivan, plaintiff’s husband. Unless- the Courts must look away from the obvious, they know that it is- probable almost to the point of certainty that in writing a deed no layman would express the conveyance of a life estate by the mere omission of thesword “heirs” in the premises and the *habendum*when using it in the warranty, and that no lawyer would do so except one wholly possessed with the spirit of priggishnessi-

These circumstances- taken together make proof clear and convincing that it was the intention of Mrs. Sullivan and Mrs. Greer that the conveyance -to- the latter for valuable consideration should convey a fee simple title, and under such proof the defendant was entitled to- have the- deed re-formed. *Austin*v. *Hunter,*85 S. C. 472, 67 S. E. 734, and cases cited.

Affirmed.

Mr. Justice Fraser *concurs in the result.*