Land Mortgage Co. v. Pace , 23 Tex. Civ. App. 222 ( 1900 )

Being unable to concur with his associates in the disposition made of this case, the writer, as required by statute, will state the reasons for his dissent.

There is much in the strong opinion of Chief Justice Fisher that meets my hearty approval, and especially that portion of it which holds that a written instrument may be reformed upon the testimony of one uncorroborated, credible witness, though contradicted by other witnesses.

It is not believed that property rights, though secured by written instruments, are of greater sanctity than life and liberty; and as the law will permit the citizen to be condemned to the gallows or to prison upon the testimony of one such witness, it is illogical and unreasonable to hold that a written instrument affecting only property rights may not be reformed upon like testimony.

My dissent in this case is based upon two propositions, which are: (1) there is latent ambiguity in the judgment as disclosed by the testimony, which renders uncertain the location on the ground of the 144 acres of land reserved from the trust deeds as part of appellees' homestead; and (2) the testimony upon which the judgment is based, in so far as it relates to the locality of the 144 acres of land intended to be reserved from the trust deeds, is too indefinite and uncertain to support the verdict and sustain the judgment reforming the trust deed.

1. It is not denied that the map made by the witness Wallace is a correct delineation of the land, including the two fields in cultivation on that portion of the land outside of the 56-acre tract. The description in the judgment of the 144 acres is as follows: "Bounded on the west by D.C. Pace's 105-acre tract; on the south by the original south line of the James R. Pace survey; on the east by the Nolan tract and the 60-acre tract of Stanley, and on the north by a line running parallel with the south line of this tract at a sufficient distance north of said line to give 144 acres, which north line of this tract is also parallel with the 987 vara line on the south of Beckett's tract, mentioned in said deed of trust."

An inspection of the map shows that the Nolan tract lies in the southeast corner of the J.R. Pace tract; its south line being identical with the south line of the Pace tract for about two-thirds of the distance from the southeast corner of said Pace tract to the southeast corner of the D.C. Pace 105-acre tract. From its southwest corner, the Nolan runs south 30 west 153 1/2 varas; thence north 60 E. 551 varas; thence south 30 W. 130 varas. The judgment describes the 144 acres as bounded on the south by the J.R. Pace south line, and on the east by the Nolan tract and the Stanley 60-acre tract.

To my mind it is uncertain from this description whether the Nolan tract is to be included in or excluded from the 144-acre tract. If the Nolan tract be excluded, it will not be bounded on the south for more than half the length of the south line by the Nolan survey, and will be bounded on the south by the Nolan to the extent of 551 varas. In fact, according to the map, if the Nolan be excluded, there will be as much of the south boundary on the Nolan as on the Pace. True, it may be necessary to exclude the Nolan in order to get the full width of that survey as an eastern boundary; but it seems to me that the call for the south line of the J.R. Pace survey as the south boundary of the 144 acres, and the failure to give the Nolan line as any part of the south boundary is of as much force as the call for the eastern boundary of the Nolan, especially when that boundary consists of two fragments 551 varas apart, one of which is as near the west side of the main body of the 144 acres as it is the east side thereof.

I do not say that it was the intention of the decree to include all or part of the Nolan survey in the 144 acres; but, in view of the call for the J.R. Pace south line and for no other southern boundary, my conclusion is that the decree is ambiguous when applied to the facts disclosed by the testimony; and that it can not be determined whether the Nolan tract should be included or excluded.

Again, the decree describes the 144 acres as bounded on the east in part by the 60-acre tract of Stanley, and no reference is made to the Singleton tract, which according to the map lies immediately north of the Nolan, west of the Stanley, and east of appellees' 65-acre field. In other words, the decree describes the 144 acres as bounded on the east by the Nolan and Stanley tracts, and does not refer to any other survey as an eastern boundary; but to hold that the 144 acres is bounded on the east by the Nolan and Stanley tracts only, and not by the Singleton also, would cause it to include the latter survey which is not embraced in the trust deed. The decree follows the description given in appellees' pleading, and it is not reasonable to suppose that they intended to reserve from the deed of trust land not embraced therein; yet, according to the language of their pleading and the decree of the court, it seems that the Singleton tract would constitute a part of the 144 acres so reserved by the decree; and this fact creates another element of uncertainty as to the location of the 144 acres to be reserved from the deed of trust.

2. The verdict of the jury states in terms that a mutual mistake was made in the execution of the trust deed; and in effect finds that the 144 acres intended to be reserved as a part of appellees' homestead was and is the land described in appellees' pleadings and so reserved by the decree of the court. This specific finding of mutual mistake eliminates the question of fraud, and any right which appellees may have had to annul or rescind the trust deed on account thereof.

In Howard v. Zimpelman, 14 Southwestern Reporter, 62, the present Chief Justice of our Supreme Court, speaking for the court, said: "It is against the policy of the law that a written instrument should be shown by parol testimony to have an effect different from that which its terms import, except upon very strong proof." And the authorities in other jurisdictions are almost unanimously in accord upon the proposition that, in order to correct or reform a written instrument upon the ground of mutual mistake, the proof of the mistake must be definite, certain, and, as often said, beyond reasonable doubt. However, our own Supreme Court has held that it is not proper in such cases to charge the jury that the facts relied on to accomplish that result must be established with certainty or beyond reasonable doubt.

In the case just cited it is said to be proper in such cases, to instruct the jury as to the legal effect of the written instrument, and tell them that the parties to it are presumed to have intended that it should have that effect; but that the jury should find otherwise, provided the evidence be sufficient to overcome that presumption, and to reasonably satisfy them that it was intended otherwise than as stated in the instrument. The opinion had previously stated that it was misleading to instruct a jury that the burden of proof was upon the defendants to establish clearly and with certainty by a preponderance of evidence, that the instruments were executed for some purpose other than that expressed in them.

This court held this to be misleading because certainty means the absence of doubt; still the charge recommended by the court requiring the evidence to reasonably satisfy the jury, would antagonize a former opinion of the same court in Baines v. Ullmann, 71 Tex. 537, in which the use of the word "satisfy" in a charge is condemned; the court saying in effect that evidence does not satisfy the mind unless it frees it from doubt or uncertainty.

In my judgment, there is no substantial difference between the expressions "prove with certainty," or "to the satisfaction of the jury," or "beyond a reasonable doubt." If the evidence leaves the fact sought to be established in reasonable doubt, then it is not proved with certainty, nor to the satisfaction of a fair and impartial mind; and when it is sought to reform a written instrument upon the ground of mutual mistake, if the evidence is not of this character, in my opinion the instrument ought not to be reformed; and it ought to be permissible to announce this rule of law in the charge to the jury. Railways v. Shirley, 45 Tex. 377 [45 Tex. 377]; Pom. Eq. Jur., sec. 859; 15 Am. and Eng. Enc. of Law, 650, and cases cited in note. Not only must there be satisfactory proof of mutual mistake in the preparation of the written instrument, but, in order to reform it and make it apply to other property or differently from what is stated in the instrument, the party seeking to accomplish that result must show with certainty and particularity how the instrument should have been written.

In the case at bar, the appellees sought to borrow and did borrow money from appellant. In order to secure the loan, they offered to execute a trust deed on about 300 acres of land, it being the excess after deducting their homestead from a body of land comprising 496 acres, which they owned and had inclosed, either as fields in cultivation or as pasture; and the testimony shows that they were using the pasture land for the purpose of grazing their stock, and were also deriving some revenue from it by pasturing stock for other people.

Under these circumstances Pace had the power, in my opinion, to designate the 144 acres reserved in the trust deed and contiguous to the 56-acre tract upon which he resided, as part of his homestead. And if it was so designated he could then or thereafter legally incumber the residue, although he may have been cultivating a portion thereof, I believe the opinion of our Supreme Court in the case of Affleck v. Wangermann, 55 Southwestern Reporter, 313, cited in the majority opinion, sustains this proposition. If I am correct in this, appellees were confronted with a valid written deed of trust, executed by them, free from ambiguity; and in order to alter or change its meaning and effect, it devolved upon them not only to show that they did not intend to reserve the 144 acres described in the trust deed as part of their homestead, but that they intended to reserve a different and specific 144 acres, which can be pointed out and identified upon the ground; and that this intention was known to and concurred in by the Browns, who were acting for appellant; and that the land so agreed to be reserved is the identical land described in their plea.

The testimony relied on for this purpose is that given by Pace himself. He states that the Browns did not go upon and examine the land themselves; that he furnished them an abstract of title and told them that he wanted the 144 acres reserved as part of his homestead to come out of the southeast end of the 496-acre tract, and to include all of his land then in cultivation. He also stated that it was intended that the 144 acres should adjoin the 56-acre tract on which he resided, so as to make his homestead in a solid block, and that he would not have executed the homestead designation had he known that it would separate his homestead into two tracts. He stated that the 144 acres, after correcting the trust deed to conform with his contention, would not include all of the old Pace field that was in cultivation when the instruments were first executed; and the map in evidence confirms this latter statement, and indicates that a considerable portion of the land then in cultivation is excluded from the 144 acres reserved by the decree. However, he did not pretend to know or state the exact amount of the old Pace field that was included in the reservation in the trust deed. But Wallace, who surveyed the lands, and whose testimony is not controverted, shows that the old Pace field contained only 65 3/4 acres, and that about 25 acres of this is embraced in the 144 acres reserved from the trust deed before its correction. It is also shown by his testimony, as well as that of Pace, that the homestead as originally reserved is in a solid body, as Pace swore he intended it should be; while according to the decree, even if the Nolan tract be excluded from the 144 acres, that tract would be disconnected from the 56-acre tract on which appellees reside.

If the deed of trust is to be corrected at all, it must be done in accordance with the averments in appellees' pleading. It is not sufficient to show a mistake in its preparation, and that the intention was to reserve another and different 144 acres as part of the homestead; but appellees' proof must go further and show that the mutual purpose was to reserve the identical 144 acres described in their pleading. In my judgment, this they have utterly failed to do. Pace, nor any other witness, does not state that the boundaries of the 144 acres given in appellees' pleading and carried into the decree, were agreed upon between the parties. There was a plat of the land attached to the abstract of title furnished by Pace to Brown and used by him in the preparation of the homestead designation and deed of trust; but it is not shown that the plat referred to had the Nolan survey marked upon it. The testimony shows that Pace had made no deed to the Nolan tract, and that it had no written field notes; and it was not shown that Brown and Pace agreed to call for its east lines as the boundary of the 144-acre tract; nor does Pace's testimony show that the parties agreed that the 144-acre tract should extend west to the D.C. Pace 105-acre tract.

As I read Pace's testimony in reference to the intended location of the 144-acre tract, two controlling purposes were in view; and these were that the 144 acres should be contiguous to the 56-acre tract so as to preserve the homestead in a solid block, and all of the land then in cultivation was to be embraced in the homestead reservation. All other matters of description were subordinate to these cardinal purposes, and any reformation of the trust deed which does not accomplish this result is not in accordance with the main purposes disclosed by Pace's testimony.

The reformation sought by appellees and accorded by the decree of the court does not accomplish either of these objects. It separates the homestead into two disconnected bodies and it does not include all the land in cultivation. If it had been sought, it may be that a decree could have been rendered connecting the two surveys and reserving all the land in cultivation at the inception of the transaction under consideration. To have done so would have disregarded some of the other matters of description, which were of minor importance; and whether or not a court of equity would have been justified in granting such relief need not now be determined. It was not sought, and the question now is, were appellees entitled to the relief they saw proper to seek?

In my judgment, the reservation in the homestead designation and trust deed are as much in accord with the prime objects disclosed by Pace's testimony as is the reservation established by the decree. Pace states that it was his intention that the 144 acres should so connect with the 56 acres on which he and his family resided as to leave his homestead in a solid block, and this object the deed of trust accomplished. He further states that he would not have signed the designation of homestead had he not thought that he was setting apart his homestead in a solid block. This testimony shows clearly that he then had the fixed and controlling purpose, not merely to keep his homestead in two connected tracts, but to preserve it in a solid block, as was done by the designation by which the 144 acres connected with the 56 acres on the south and east, leaving the homestead in the shape of a parallelogram, except some irregularity in the lines on the northwest end. It is true that the reservation referred to does not include as much of the land then in cultivation as does the reservation contained in the decree; but neither include all the land then in cultivation. So it appears to me that the reservation contained in the original instruments accomplished one of the prime objects intended by the parties, while the reservation contained in the decree does not accomplish either of said objects.

Because there was no evidence sufficiently identifying the 144 acres reserved in the decree as homestead, as intended by the parties to be reserved, I think the court erred in not giving appellant's requested instruction directing a verdict for it, and in not setting aside the verdict after it was rendered.

Filed March 28, 1900.

Writ of error refused.