Capelli v. Dondero

Citations

• 123 Cal. 324
• 55 P. 1057
• 1899 Cal. LEXIS 1071

Syllabus

<p>Reformation of Deed—Mutual Mistake—Measure of Proof—Rules for Trial Court—Appeal—Conflicting Evidence.—In an action to reform a deed upon the ground of mutual mistake, the rules that evidence warranting the reformation of the deed must be clear and convincing and not loose, equivocal or contradictory, leaving the mistake open to doubt, and that unless the proofs come up to this standard equity will withhold relief, are merely rules for tíre government of the trial court; and they are not controlling upon appeal from a judgment reforming the deed, where the findings find support in the evidence, notwithstanding the evidence is conflicting. The court cannot in such a case enter upon an examination of the evidence to determine where the preponderance lies, or decide as to the weight of conflicting evidence.</p> <p>In.—Division by Cotenants — Boundary—Mistake of Surveyor.— Under an agreement found to exist between cotenants of land to divide the land between them and to take the center line of a particular road as the boundary line between them, where a surveyor was employed to establish such line, and by miscake ran a straight line between two points agreed upon, instead of following the center of the read as agreed, a conveyance conforming to such survey, to the injury of the grantor in respect of access to his barns, buildings, and outhouses, may be reformed, upon the ground of mutual mistake, so as to conform the boundary to the agreement made.</p> <p>Id.—Authority for Survey—Presumption—Negligence.—In the ab-» seuce of evidence to the contrary, it must, be presumed that the plaintiff authorized no other survey to be made than the one agreed upon, and plaintiff had a right to assume that the line would be and wasjjn fact'run in accordance with the agreement; and negligence to inquire just where the line was established cannot be presumed where the circumstances do not charge plaintiff with notice that it was established otherwise than as agreed.</p> <p>Id.—Eviden