Herring v. Fitts

Citations

• 43 Fla. 54

Syllabus

<p>1. A court of chancery possesses jurisdiction to correct a mutual mistake wlien clearly established by proof.</p> <p>2. When a married woman intends to convey or mortgage her real estate, and to accomplish such purpose executes a proper instrument in conjunction with her husband with all the formalities required by law, but by mistake of the scrivener an erroneous description of the land is inserted contrary to the intent of the parties, a court of chancery has power to correct the mistake upon clear proof of the fact, and in so doing the intent and policy of our laws in reference to alienation of real estate by married women are not contravened. Causing the true description to be read into the deed neither makes a new conveyance or changes an old one; it simply make's the conveyance effective by applying it to the property intended to ‘be included.</p> <p>3. A recital in a mortgage that it is second to one executed to a third party on a prior date is binding upon a mortgagee who accepts i't. and where a mutual mistake was made in the description of the property in the 'first mortgage it may be corrected without injustice to the mortgagee in the second.</p>