Carlson v. Druse

Citations

• 79 Wash. 542
• 140 P. 570
• 1914 Wash. LEXIS 1222

Syllabus

<p>Reformation of Instruments — Mutual Mistake — Complaint— Sufficiency. A complaint in an action to reform a deed shows a mutual mistake and1 states a cause of action, where it alleges that the defendant sold plaintiff 2% acres of land at $2,500 per acre, and staked the same out upon the ground, exclusive of roads, and later gave the deed in question disregarding the stakes and containing but 2y2 acres including road's on the west and north boundaries, making a deficit of about half an acre.</p> <p>Appeal — Review—Amendments to Conform to Proof. In a case tried to the court in which each side fully presented its evidence on the real issue, a defective complaint will be deemed amended on appeal to conform to the proof.</p> <p>Reformation of Instruments — Mutual Mistake — Evidence. To warrant the reformation of a deed for mutual mistake, the evidence must he clear and convincing that the writing was not what the parties intended it to be.</p> <p>Same — Mutual Mistake — Evidence—Sufficiency. It sufficiently appears, by clear and convincing evidence, that there was a mutual mistake in a deed of 2% acres, including the area in roads on the north and west boundaries of the tract, where it appears that the grantor, owning a five and one-half acre tract, agreed to sell 2% acres, at $2,500 per acre, and measured with a tape and set a stake on the east side of the west road, which he stated would be the boundary, and which made 2% acres exclusive of the roads, and later moved the stake 42 feet north ancí made deed accordingly so as to grant but 2% acres including both roads, that the grantor informed the grantee that one-half of the north road “comes off the tract,” but nothing was said about the grant being subject to the west road; since it was clearly implied that the purchase of the north two and one-half acres included the north road but not the west road.</p> <p>Same — Mutual Mistake — Defenses — Negligence. The negligence of a party is not ground for denying the refor