Lord v. Horr

Citations

• 30 Wash. 477
• 71 P. 23
• 1902 Wash. LEXIS 712

Syllabus

<p>REFORMATION OF DEED-LAND INCLUDED UNDER TWO CONTRACTS-MUTUAL MISTAKE-RESCISSION.</p> <p>Plaintiffs assignor had purchased a strip of land twenty feet wide off the east side of the land of defendant under a contract of sale, which was assigned to plaintiff, who contracted with defendant for ten feet additional, and a deed was executed conveying a tract described by metes and bounds, which was 30 feet wide on the street and 16.8 feet wide at the rear end of the lot, instead of being a thirty foot strip of land, as the parties had contemplated. The mistake arose from the fact that the lot lines were supposed to run at right angles, while in fact the side lines paralleled one of the streets which was at an angle of 95° 56' with the other. There was no misunderstanding between the parties as to the twenty-foot strip, but the conveyance of an additional ten-foot strip off the east side would have included a portion of defendant’s buildings and fruit and ornamental trees, which was not within the contemplation of either of the parties. Plaintiff brought an action to enforce the deed, so as to make it include a thirty-foot strip, and defendant asked for rescission of the whole contract.</p> <p>Held, that plaintiff was entitled to reformation of the deed so as to properly describe and include the twenty-foot strip covered by the first contract, and defendant was entitled to a rescission of the second contract on the ground of mutual mistake.</p> <p>SAME-RIGHT TO RELIEF.</p> <p>The fact that a party asks for rescission as to two tracts of land sold under separate contracts, but included in the deed as an entirety, would not deprive her of the right to rescind as to that portion of the contract for which she was entitled to relief.</p> <p>SAME —■ TENDER-OBJECTIONS NOT URGED BELOW.</p> <p>Failure to tender purchase money when asking for rescission of a deed upon which it was paid would not preclude the defendant from relief, when issue was taken upon her answer without objec