(specially concurring in part and dissenting in part).
The evidence is undisputed that the deed from McCoy to Webb did not accurately describe the land involved in the sales transaction between these parties. The trial court found that McCoy and Webb believed the deed described the land which McCoy was selling to Webb. The trial court found that the mistake in the description was discovered when Webb was negotiating with Alsup and Beevers to sell the land which Webb purchased from McCoy. These findings are supported by clear and satisfactory evidence. See Butler v. Butler, 80 N.M. 36, 450 P.2d 922 (1969).
The trial court concluded that there was a mutual mistake concerning the land description as between McCoy and Webb. Inasmuch as Alsup and Beevers knew of the mistake before they purchased the land, using the erroneous description, Alsup and Beevers are not insulated from the consequence of the mutual mistake because not bona fide purchasers. Kimberly, Inc. v. Hays, 88 N.M. 140, 537 P.2d 1402 (1975).
Although the trial court concluded there had been a mutual mistake, it nevertheless denied relief to the McCoys. The trial court should have reformed the deed description. Morris v. Merchant, 77 N.M. 411, 423 P.2d 606 (1967); Wright v. Brem, 81 N.M. 410, 467 P.2d 736 (Ct.App.1970).
Webb seeks to take advantage of his mistake, which was part of the mutual mistake, by claiming that mistake was a theory neither pled nor proved. McCoy’s complaint relied on the document discussed in Judge Sutin’s opinion. This document was signed by all the parties; the document acknowledges the mistake in the description by setting forth the action to be taken to correct the description. In addition, the mistake in the description was the basis for the lawsuit. Although not specifically pleaded, “mistake” was tried, and the trial court properly made findings concerning mistake. Rule of Civ.Proc. 15(b).
Alsup and Beevers seek to avoid any consequence to them of the mistake on several grounds. Their claim that “mistake” was not an issue to be decided is answered in the preceding paragraph. Their claim that a mutual mistake between McCoy and Webb was not proven is answered by the trial court’s finding. Their claim that they were not involved in the mistake and, thus, should suffer no consequence from the mistake is answered by the trial court’s finding that they knew of the mistake before they purchased from Webb.
I do not concur in Judge Sutin’s opinion. However, because the trial court should have reformed the deed description, but failed to do so, I join that part of Judge Sutin’s opinion which directs the trial court to order specific performance of the agreement to correct the erroneous description.
I agree with Judge Sutin that the record does not show a basis for exemplary damages. I do not agree that this Court should award compensatory damages in favor of McCoy. If the award is against Webb, it is improper because the trial court granted judgment for Webb at the close of McCoy’s case, before Webb was required to present his defense. If the award is against Alsup and Beevers, it is improper because the trial court made no damage findings and that should be left, initially, to the trial court. I would remand the question of compensatory damages to the trial court with instructions to decide the question of compensatory damages after an evidentiary hearing limited to that question.