Weidebusch v. Hartenstein

Citations

• 12 W. Va. 760
• 1878 W. Va. LEXIS 49

Syllabus

<p>On the 24th day of December, 1850, W. made a deed to Z. J., by which he settled upon Z. J. a certain house and lot for the use and benefit of W. and T., his then wife, during their joint lives, and to the survivor of them, and then to the three children of said, T. by a former husband, and to such children, as might be bom to said W. and T. Afterwards T. and Z. J. and one of the children died, and said W. again married; and on the &emdash; day of July, 1872, W. filed his bill in chancery against the two surviving children and their husbands, and the widow of Z. J., to have the deed rescinded upon the ground that the scrivener, who was the said Z. J., “through misapprehension and mistalce,” drew up a deed instead of a will, when it was intended and desired to make a will instead of a deed. Held :</p> <p>1. To rescind a deed under such circumstances, the proof must be very strong and clear, that the scrivener did, through misapprehension and mistake, draw a deed instead of a will.</p> <p>2. The great lapse of time since the drawing of the deed and before the institution of the suit to rescind it, coupled with the fact that the wife, the scrivener and one of the children had died long before the bringing of the suit, and the second marriage of W., should demand the strongest proof of the scrivener’s mistake, to justify a court o^ equity in rescinding the deed.</p> <p>3. The proof in this case is vague, weak and uncertain, and not sufficient to establish the pretended mistake, and therefore the deed should not be rescinded.</p>