I am unable to agree with the majority opinion in this case. As I see it, this case was tried and briefed in this court on the theory that the scrivener had made a mistake in preparing the deed. The appellants' main point in their brief is as follows:
"Where there is clear, cogent and convincing proof that a deed supported by a valuable or meritorious consideration does not express the agreement of the parties on account of a mistake in preparation of same by a scrivener acting for both parties, equity will reform the deed so as to correctly express the agreement and understanding of the parties."
There were only two witnesses to the contract and the execution of the deed; they were Jake Willfong and F.G. Seabaugh, the scrivener who prepared the deed.
Willfong testified in substance as follows: That he remodeled the barn and the grantee paid for some of the material; that she paid for some of the groceries he bought for her husband and her; that he was present when F.G. Seabaugh was there to prepare the deed but said, "I don't think I was in the room at the time they discussed how the deed was to be made. I was in the room after the deed was written. . . . I went in and when I took the pencil in hand I said, `What are you doing here?' . . . He said, `I am making Hannah Seabaugh a deed for this forty acres of land the house sets on, just like I told you I was going to do.' I then put my name on a piece of paper they had that they said was the deed. That is my signature on the deed."
The essential part of the testimony of F.G. Seabaugh is as follows: "Jake Willfong and Mr. Seabaugh and his wife were present when I arrived. We talked a while and I asked them the nature of them calling me and we talked and it was said that they had been talking between themselves, Mr. and Mrs. Seabaugh in regard to deeding the home forty-acres . . . I said . . . I am here to do *Page 736 the work for you. Mr. Seabaugh got up and went over in the other room and he got the family Bible in which the deeds were and he brought them out and laid them on — I don't remember whether it was the sewing machine or table — and he got the deeds out and opened them up and said `now there is a trust deed on part of this, I want to deed the forty-acres the house and barn is on' and he showed me the description, that was as he thought the description of the forty-acre home place. He said `this is what the trust deed is on and this is the forty-acres the house and barn is on.' He told me to make the deed for the one that was clear and he showed me what he thought was clear, . . . I got busy and made the deed according to his instructions, the deed being from Mr. Seabaugh to Mrs. Seabaugh, covering the descriptions he pointed out as covering the home place. After I prepared the deed I asked him if he could sign his name to it and he said he couldn't. I wrote his name on it and had him make his mark and I signed it as one witness and I think Mr. Willfong signed it as the other witness. The deed was then acknowledged. . . . The description in that deed is the description he pointedout as being the description of the home place. It was myunderstanding at that time that the deed was to cover the homeplace, and that was my understanding of the directions."
On cross-examination F.G. Seabaugh's testimony was as follows: Q. "When you took the deed and filled out the descriptions you saw this deed, did you not, that he gave you was for eighty-acres — two (2) forty lying North and South and this other forty over by itself?" A. "Yes, sir. This forty is what he intended to deed . . . I wrote it as he wanted it."
And on redirect examination his testimony was: "Both Mr. and Mrs. Seabaugh and Mr. Willfong were present during the conversation and when the deed was prepared. I was directed to prepare a deed covering the home place. It was my understanding at the time that the deed I prepared did cover the home place, those were the directions Mr. and Mrs. Seabaugh had given me. Mr. Seabaugh didn't read off the description but simply pointed out a description as the description of the home place. I wrote it just as he had directed me."
The evidence further shows that the three forty-acre tracts of land had been conveyed to the grantor by two deeds, the eighty-acre tract in Section 32 by one deed and the forty-acre tract in Section 31, or the home place, by another deed. The scrivener was not shown the deed to the home place.
From the evidence, I conclude that the scrivener did not make a mistake in describing the land in the deed; he testified that "I wrote it as he wanted it. I make the description just as he showed me, he just pointed it out." The mistake, if any, was not in the description *Page 737 but was the grantor's mistake in thinking the house was on the forty acres that he wanted to convey to his wife.
To reform a deed under this evidence we would have to make a new contract for the grantor. This we cannot do. He may have been perfectly willing to deed the land described in the deed with the house and barn on it but not willing to deed the land that it was actually on.
I disagree with the majority opinion when it states that the case of General Refractories Co. v. Sebek, 328 Mo. 1143,44 S.W.2d 60, is not in point. I think it is very much in point as the following quotation from that case will show:
"It may be true that both Toelke and Sebek intended that theparticular clay pit just referred to should be included in thelease. But, even so, it does not follow that the lease as writtendoes not correctly set forth the contract actually entered intoby the parties. They may have assumed that the pit was not within 200 yards of any building, for at the time of making the lease neither knew its distance in feet from the buildings, and no measurements were made. And if the lease was written just as the parties intended it should be written, that is, correctly embodies the terms of the contract actually entered into, there is no ground for its reformation. `A contract cannot be reformed for a mistake not in the contract itself or in the writing embodying it, but of an extrinsic fact which, if known, would probably have induced the parties to make a different contract.' [23 R.C.L. 321; Webster v. Stark, 10 Lea (Tenn.) 406.] In other words, the court cannot supply an agreement that was never made. [Tesson v. Insurance Co., 40 Mo. 33, 93 Am. Dec. 293.]" (Italics mine.)
Nor do I agree that the case of Bartlett v. White, 272 S.W. 944, supports the appellants' contention. In that case the scrivener was given a deed which the grantor had received when he bought the land, which correctly described the land, and in copying the description of the land the scrivener made a mistake as to eighty acres, while in the case at bar the description was correctly copied from the deed the grantor received and the scrivener did not even see the deed to the land on which the house was situated.
I think the judgment should be affirmed. *Page 738