David Thomas NELSON et al.
v.
Maryetta Nelson HARRIS, Individually, et al., Defendants, and
Clifford Paul Harris, Additional Defendant.
No. 7619SC689.
Court of Appeals of North Carolina.
February 16, 1977.*299 Coltrane & Gavin by W. E. Gavin, Asheboro, for plaintiffs-appellees.
*300 Bell & Ogburn by John N. Ogburn, Jr., Asheboro, for defendants.
HEDRICK, Judge.
By assignments of error 1 and 2 based on numerous exceptions duly noted in the record, defendants contend the court erred in admitting the testimony of Allie Nelson and the lawyer who prepared the several deeds. Defendants argue that this testimony violated the parol evidence rule.
In an action to reform a deed for mutual mistake, parol evidence is admissible to prove that due to the mutual mistake of the parties, the deed does not express the actual intent of the parties. Hubbard and Co. v. Horne, 203 N.C. 205, 165 S.E. 347 (1932). "A witness in a position to know may testify concerning the intention of the parties to an agreement, to the same effect as to any other fact." 66 Am.Jur.2d Reformation of Instruments, § 118, p. 645 (1973).
Obviously the testimony challenged by these exceptions was probative of the intention of the parties, and certainly Allie Nelson and the lawyer were in a position to know the intention of the parties. These assignments of error have no merit.
By assignments of error 4 and 5 defendants contend the court erred in not allowing their motions for involuntary dismissal. In support of these assignments of error defendants argue that their motions should have been allowed "for there was NO COMPETENT evidence before the Court proving mutuality of mistake between David Thomas Nelson and Barbara T. Nelson, and the defendants, and the additional defendant.. . . Certainly, the defendants, Michael Filmore Routh, Donald Nelson Routh, Terri Lynn Routh, and Cynthia Ann Routh, and the additional defendant, Clifford Paul Harris, were never consulted about the reservation in the deed, nor is there any evidence in the record to show same."
The equitable remedy of reformation of a deed will be granted when it is shown by clear, cogent, and convincing evidence that due to the mutual mistake of the parties the deed does not express the actual agreement made between the parties. Yopp v. Aman, 212 N.C. 479, 193 S.E. 822 (1937); Durham v. Creech, N.C.App., 231 S.E.2d 163 (filed January 5, 1977).
The grantor of a conveyance for which no consideration was given by the grantee is entitled to reformation when the deed fails to express the actual intent of the parties due to the grantor's unilateral mistake. 66 Am.Jur., Reformation of Instruments, § 45 (1973); Annot. 69 A.L.R. 423, 430-431 (1930).
The record in the present case is replete with competent evidence supporting all the material facts found by the trial judge. Those facts dictate the conclusion that the 3.28-acre lot rather than the 4.25-acre well lot was excepted from Exhibit A because of the mutual mistake of the parties. The defendants Routh did not participate in the negotiations with the grantors which culminated in their obtaining a remainder interest in the property without having given any consideration whatsoever. Their mother acted for them as trustee, and any mistake she may have made while acting in their behalf extends to them. These assignments of error have no merit.
Defendants bring forward additional assignments of error substantially similar to those already discussed. We have considered all of the assignments of error and find them to be without merit. The judgment appealed from is
Affirmed.
VAUGHN and CLARK, JJ., concur.