Manatt v. Starr

¶1I. In 1858, Robert Brown owned three forty-acre tracts of land which are so situated that they make together a tract 240 rods long and 80 rods wide, the length being east and west. The three forties constitute a tract three forties in length, from east to west, and one forty broad. At that date he conveyed the east forty to one Grarver, who subsequently conveyed it to defendant Starr ; and soon after this conveyance Brown executed a mortgage -to the state university, to secure $400 borrowed money, conveying the west forty and also the east forty, which had before been conveyed by him as just stated. The two forties were subsequently conveyed separately by Brown ; the west one being *679conveyed by bis grantee to plaintiff, and tbe middle one to defendant Starr. Plaintiff alleges in bis petition that tbe mortgage mistakenly describes and conveys tbe east forty, it being tbe purpose of tbe parties to convey the west and middle forties, which at tbe time were owned by Brown, and prays that tbe mortgage may be corrected accordingly and declared to be a lien upon tbe middle forty. Tbe defendant Starr, in bis answer, denies that there is a mistake in tbe mortgage, and alleges that tbe intention of the parties was to convey tbe land described in tbe instrument. He also claims that plaintiff’s action is barred by tbe statute of limitations. Tbe university, in its answer, denies the allegations of plaintiff’s petition, not having any information upon tbe subject sufficient to authorize a belief; but alleges that at tbe time tbe mortgage was executed Brown owned all of tbe lands described in tbe mortgage, and claims a lien thereon. Tbe treasurer of tbe university, who is made a defendant, admits certain payments alleged to have been made upon tbe principal and interest of tbe mortgage, and asks for tbe foreclosure thereof, and for general relief. Plaintiff’s petition was dismissed by tbe final decree, and tbe mortgage was foreclosed upon tbe land described therein.

¶21. i-lbading : Soaiutííy n<>t a»o tlier’s allegations: mutuality of mistake. II. In our opinion, tbe evidence clearly establishes tbe mistake in tbe mortgage. It is proved by tbe direct and positive evidence of Brown and bis wife, and by tbe further fact that Brown at tbe time did not own the east forty described in the deed, — a circumstance of considerable weight tending to corroborate these witnesses. There is not one word of evidence tending to contradict them on this point. Counsel for defendant Starr insist that, as tbe mistake against which equity will relieve must be mutual, plaintiff cannot maintain this action, for tbe reason that there was no mistake upon tbe part of the university; that insti- . A 1 , ’ tution understanding that the lands described in ° the mortgage were those intended to be conveyed. In support of tbe fact upon which this position is based, *680counsel rely upon the allegations of the answer of the university, which they claim avers that there was no mistake in the mortgage. Assuming that the answer of the university is to be so understood, we are of the opinion that its allegations are not to be conclusive against plaintiff.. Surely the plaintiff cannot be precluded by an answer of a defendant which pleads facts inconsistent with the claim and allegation of the petition. The university, introduces no evidence in support of its answer. Defendant Starr, when he purchased the middle forty, agreed to pay the whole amount due on the mortgage, as a part of the consideration for the land. Brown and his wife testify positively and directly to this effect. Starr testifies to the contrary; stating that the consideration paid was a mare and colt and cow. Brown and his wife are corroborated by evidence showing Starr’s admissions that he was to pay half of the mortgage debt to the university, and promised to do so, and that for about fifteen years he did pay half 'the interest upon the mortgage annually. The strong preponderance of the evidence shows that the mare, colt and cow were an insufficient consideration for the land, which was worth at the time the value of that property added to the sum secured by the mortgage. Other testimony which need not be noticed supports the conclusion we have reached upon this point of the case.

¶32. STATUTE Of limitations: aisoovory:ke: diligence. III. We are next to inquire whether plaintiff’s action is barred by the statute of limitations. The statute does not run against the university. It did not com- ° J menee to run against plaintiff until he discovered mistake. (Code, § 2530.) The plaintiff testifies that he did not discover the mistake until within five years prior to th’e commencement of the action. There is no direct evidence contradicting his testimony. Counsel for defendant, as contradicting it, rely upon 'circumstances showing that he had opportunity and the means of discovering the mistake. But he did not avail himself thereof, for the reason, as we shall soon see, that he was *681lulled into security, and the belief that there was no mistake in the mortgage, by the acts of Starr.

¶4IY. It is further insisted by counsel that plaintiff was put upon inquiry, and charged with knowledge which he might have gained thereby. But Starr’s declarations that he was bound to pay the mortgage, his promise to do so, and his payment of interest annually for a great many years, all known to plaintiff, surely authorized the belief on his part that the mortgage covered the middle forty, and that the mortgage, which it does not appear he ever saw, described that tract. He could surely rely upon the promises and acts of payment on the part of Starr, and was not, therefore, called upon to make inquiry which would have led to the discovery of the mistake. The facts of the case involved in the points we have discussed are argued at considerable length by counsel. We think it quite unnecessary to discuss, more fully than we have done, the evidence, as the facts we have found, as above stated, support the conclusions we have reached, which control the decision of the case.

¶53. APPEAL: practice: filing new pleadings. Y. The university moves in this court for leave to file here an amendment to its answer and cross-petition, praying for a correction of the mortgage, and a foreclosure thereof. The motion must be overruled. Appeals in this court are tried upon the record of the court below; original pleadings and proceedings are never filed or had in this court.

¶64. equity: íionpicíuUngs jiotpreveni-YI. But we are of the opinion that upon the relief claimed in plaintiff’s petition, and in the cross-petition °f the university and its treasurer, proper relief may be granted to the university. The p^g^g? prayS that the mortgage be reformed, and be declared to be a lien upon the middle forty, and that defendant Starr be made personally liable for the amount due upon the mortgage, and for general relief. He is entitled to this relief.

¶7The treasurer of the university prays in his cross-petition *682that the mortgage be foreclosed. We think that upon this prayer we are authorized to give the relief asked; and in view of the fact that full relief cannot be given to the plaintiff, and a final settlement of the controversy be had, unless the mortgage be foreclosed, we conclude that equity requires a foreclosure of the mortgage in this action. A decree will therefore be entered in this court reforming and correcting the mortgage so that it shall describe the middle forty acre tract of land. The mortgage as reformed shall be foreclosed, and a personal judgment shall be entered against defendant Starr for the amount due upon the mortgage. The middle forty shall be first sold upon special execution. For any balance remaining a general execution shall issue against Starr, and, upon his property being exhausted, a special execution shall issue for the sale of plaintiff’s land, the west forty; it being the intention that plaintiff’s land shall not be subject to execution until all of Starr’s property subject to execution be exhausted. The costs will be taxed against Starr. At the option of plaintiff, the case may be remanded to the court below for a decree in harmony with this opinion.

¶8REVERSED.