McClellan v. Cross

Ryan, O. J.

It appears to us immaterial to this appeal, what estate in the land in question the appellant had, at the date of the transactions with John Cross. Under an impression. presumably, that she was seized in fee, she first sold it to him for a gross consideration, and conveyed it to him in fee with covenants of title. It appears that Cross was afterward advised that she took a life estate only under the will of Greorge Bell; and that he thereupon had recourse to her for redress. The result of their second negotiation was an agreement, which amounts in equity to a rescission of their former transaction, and a new agreement that Cross should stand as purchaser from her of an estate for her life only. She thereupon refunded to him the gross consideration received for the fee, and took from him instead his agreement to pay to her annually, for her life, the interest on the former price of the fee, for which he accounted to her from the date of his possession ; being the precise -equivalent, on the basis of the former conveyance of the fee, for a life estate. In this agreement, Gross promised, upon failure to pay the annuity, to quitclaim the land to the appellant; but no express agreement was made whether the the former conveyance was to stand, or a new one to be substituted for it. It appears, however, that the parties were ignorant, and conscious of their ignorance, had no access at the time to professional advice, and so agreed that if the paper drawn and signed by Gross were not right, it should be made so.

No objection was argued to the jurisdiction of the circuit court to entertain a suit to reform the papers between the parties, or to enforce the agreement to make them right, which we understood to be conceded, if the facts should be found to warrant the relief.

It was candidly admitted by the able counsel of the respondents, on the argument, and we do not see how it could be well questioned, that if, in the second transaction between the parties, the appellant had merely returned the consideration of the deed, and Gross accepted it, without further agreement, a court of equity would have decreed a reconveyance; the conveyance being considered in equity rescinded by the refunding of the purchase money in such circumstances. And we are unable to see why, on the same principle, the gross consideration for the fee being replaced by the interest on it, for the life of the appellant, for an estate for her life, a court of equity should not consider the conveyance of the fee rescinded, to be replaced by a conveyance of the life estate. And this view is strengthened by the virtual agreement by the parties that, if their paper did not rightly carry out their dealing, they should be made to do so.

The court below, however, let the conveyance in fee stand, striking out the appellant’s covenants of title. We think that this was a mistake. In our view, the deed should stand, with its covenants so far as applicable to the life estate, as a conveyance of an estate for the life of the appellant. John Gross and his corespondent, John W. Gross, who plainly took subject to the same equities, are entitled to an estate from the appellant for her life only; but they are entitled to that with her covenants of title.

The judgment of the court below will be so far modified, and the cause remanded for judgment in conformity with this opinion.

By the Court. — So ordered.