Godfrey v. Kidwell

OPINION OF THE COURT BY

PERRY, J.

Thomas Metcalf, the complainant’s cestui que trust, who became of age on January 13, 1901, executed to the respondent on April 4, 1899, for the consideration of $100 a deed of all of his right, title and interest in the land of Wailele, Manoa, Oahu,, containing an area of 36.10 acres, and on February 4, 1901, for the consideration of $3000 a second deed relating to the same property. In the second deed, the language used is, in part, that “I, Thomas Metcalf, * * * the grantor named in a certain deed dated the 4th day of April, A. D. 1899, and recorded’ in the Register Office, in Liber 194, on pages 29 and 30, being now of legal age, * * * do hereby confirm said deed and do convey, remise, release and forever quitclaim unto the said John Kidwell and to his heirs,” all of the land of Wailele just mentioned. The prayer of the bill in this case is for a decree ■declaring that tbe two deeds were intended and understood by botli parties to convey and did convey no other or greater interest than an undivided one half of tbe land described, tbat tbe deeds be cancelled and tbat tbe respondent be ordered to reconvey tbe land to complainant upon tbe return to him of the ■sum of $3100 and interest.

Tbe main averments set forth in tbe bill as grounds for the relief asked are as follows: tbat Theophilus Metcalf, grandfather of Thomas Metcalf, devised tbe property in question to bis son Frank for life, providing further “that if my said son .shall decease leaving children lawfully begotten tbe property by this instrument to him bequeathed, shall descend to such heirs, but if he shall decease not leaving lawfully begotten children, as aforesaid,” then to others; that Frank Metcalf died March 9, 1900, leaving him surviving Thomas, a lawfully begotten child, and a daughter Emma Metcalf Ikaika; that at the time of the execution of each of the deeds above referred to, it was represented to Thomas by his father and by respondent that Emma and Thomas were the lawfully begotten children of Frank, and that the interest of Thomas conveyed by the deed of April 4, 1899, consisted of an undivided one-half; that in February, 1901, while Thomas’ attorney was absent from the Territory, the respondent’s attorneys offered him, Thomas, $3000 for his one-half interest and that, being weak of mind, unaware that the true value of his half interest was more than $7000, and totally ignorant of the value of land in these islands, he accepted the offer and executed the second deed; that it was represented to Thomas by respondent’s attorneys that the interest to be conveyed by the second deed was an undivided one-half; that such attorneys and Thomas all supposed at the time that an undivided one-half was all the interest that Thomas owned and that the attorneys represented to Thomas that Emma ■owned the other one-half interest; that the respondent at the time understood that the interest conveyed was an undivided one-half; that on March 8, 1899, respondent purchased of Emma all of the right, title and interest in the property; that in -June, 1902, the Supreme Court of Hawaii decided that Emma was not tbe lawfully begotten child of Frank and that after that decision the respondent for the first time claimed and now claims that by the two deeds in question Thomas conveyed the whole of the land and not one-half only; that the whole land is, as Thomas has ascertained since the making of the deeds, of the value of $14,000.

The Circuit Judge found that the deeds had been executed through a mistake, shared in by both parties, as to what Thomas’ interest was, and that at the time the grantor intended to convey and the grantee to acquire thereby an undivided one-half interest only, and decreed a reconveyance of the other - one-half. It is from that decree that the present appeal was taken.

The evidence does not show that the parties to the deed or either of them understood that the interest conveyed was not to be in any event greater than an undivided one-half or intended to limit the operation of the deed to that extent. On the contrary it does show that both parties understood that all of the grantor’s interest, whatever it might be, without limitation,— large or small — was being sold and purchased and was to pass by the deed, and this, too, although both parties doubtless supposed that in all probability the grantor’s interest would prove to be not more than one-half. The parties speculated. Now that the interest in question has proven to be or seems to be the whole, equity cannot grant the grantor relief. See 2 Pom. Eq. Jur. Sec. 855.

The deed of April 4, 1899, was clearly speculative. It purported to convey all of the grantor’s right, title and interest. It was executed during the lifetime of Frank Metcalf, the life-tenant, and while there was yet a possibility that Emma Ikaika, the grantor’s sister, might decease before Frank Metcalf and that Frank might die before Thomas, — in other words while there was yet a possibility that the whole estate might pass to Thomas under his grandfather’s will and to the respondent under the deed. Under his own testimony, Thomas fully realized this. The second deed was intended to be confirmatory of the first. The evidence and the bill of complaint show this and .so does the deed itself upon its face; and in the evidence can be found no reason for believing that the second deed was intended to be more limited in its operation than the first. At the time of its execution there were rumors of many claims adverse to Thomas, some in whole and some in part, and a good prospect of much litigation. The respondent’s policy was to buy up' all the claims or interests possible. He purchased those of Emma and Thomas and attempted, without success evidently, to purchase two others, those of Mrs. Rowland and of one Prosser. The respondent and his attorneys thought, perhaps, that Thomas7 interest would prove to be more than one-half but they were not certain about the matter, — it might prove to be much less than one half — and had necessarily to take some chances while so much litigation was impending. Thomas himself, while he thought that his interest was one-half, did not know just what it was; he so testifies. Neither the respondent nor either of his attorneys made any representations to Thomas as to what his interest was, but, on the other hand, Mr. Robertson and Mr. Wilder, each in turn, told Thomas before execution (the deed was read to Thomas and was by him read three or four times and on separate days before execution) that the deed was so drawn as to convey all of Thomas’ interest, whatever it might be. (Mr. Robertson’s explanation was made immediately after a statement by Thomas to the effect that he thought that his interest was one-half).. The testimony of each of the attorneys is positive, direct and clear on this point and we believe it to be true. Thomas said that was satisfactory and signed the deed. The deed, too, on its face purports to convey all of Thomas’ interest whatever it may be. In the face of these facts and more particularly of the attorneys’ statements to him concerning the effect of the deed, can it now be held that although he signed a deed conveying all of his interest “whatever it may be” Thomas nevertheless at the time understood that that meant “up to but not exceeding one half ?” We think not. He expressed no such understanding at the time, but assented to the form as explained. The attorneys’ explanations of the deed were couched in plain English and we believe that he understood them.

Thomas Fitch for complainant.

Robertson & Wilder for respondent.

That deeds are not to be lightly set aside, there can he no-doubt. In order to justify a court in rescinding or reforming; such a written instrument, the mistake or other ground relied upon by the petitioner must be established by evidence which is cle'ar and convincing. The evidence in this case not only fails-to comply with this rule but clearly shows that there was no mistake such as is contended for.

There is nothing in the evidence to warrant a finding of actual. fraud. The parties were not in any relation of trust or confidence but dealt at arm’s length. The grantor was cautioned before entering upon the negotiations leading to the execution of the second deed that he was at liberty to repudiate the first and. that he was not under any obligation to confirm it.

The decree appealed from is reversed and the cause remanded to the Circuit Judge for the entry of a decree dismissing the; bill and for such further proceedings as may be necessary.