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and of the refusal of defendant to accept tender or convey back the property so conveyed by mistake.]
That said contract so made and entered into by plaintiff and defendant is in all respects just, reasonable, and equitable, and the price agreed by this plaintiff to be paid for the property situate in the town of Berkeley, and so owned and held by said defendant, and by him agreed to be conveyed to the plaintiff, is adequate, just, and reasonable;
that for the failure and refusal of said defendant to do and perform the terms and conditions of said contract upon his part to be performed this plaintiff can receive no adequate compensation in damages; wherefore, the plaintiff seeks specific performance of all the terms and conditions of said contract.
11. That this plaintiff is now ready, and at all times has been ready, to do and perform all the covenants, stipulations, and agreements of said contract upon the part of this plaintiff to be performed; and plaintiff now offers to do and perform all of such covenants, terms, stipulations, and conditions, and submits himself to the order, judgment, and decrees of this court in the premises.
[Concluding part.] Form of petition in an action for the reformation of a contract: Mumper v. Kelley, 43 Kan. 256, 257, 23 Pac. 558, 559.
§ 458. ANNOTATIONS.
Correction of mistake of record.-Action on the ground of fraud or mistake must be brought within five years from the time of the discovery of such fraud or mis. take, under the Iowa statute. But such statute has no reference to an action to correct any evident mistake in a record, which mistake consisted in the failure to properly describe certain property in a formal order of sale entered in probate. The right of the court to correct an evident mistake in its record is inherent, and this right is not forbidden by the statute, nor affected by the mere lapse of time: Lambert v. Rice, 143 Iowa 70, 120 N. W. 96, 97, citing Iowa Code $$ 244, 288; Fuller v. Stebbins, 49 Iowa 376; Shelley v. Smith, 50 Iowa 543; Hofacre v. City of Monticello, 128 Iowa 239, 103 N. W. 488.
Mistake must be mutual to entitle to relief. It is a general doctrine in equity that a mistake common to both is an indispensable element to the reformation of a contract. By the same suit in equity, a contract may be reformed and also specifically enforced, but reformation will not be decreed, and the bill will be bad in that regard, unless elements necessary to the application of that equitable doctrine are pleaded as grounds for the relief: Meek v. Hurst, 223 Mo. 688, 122 S. W. 1022, 1024.
An averment in an action to reform an agreement for the sale of real property, "that parties to said memorandum and agreement intended to insert therein a description, but by mistake in drawing said memorandum
• the description of said lot or personal property was therein set forth incorrectly," mentioning the particulars, and stating definitely the mistake and how it was made, is sufficient in the absence of a demurrer thereto to show that the mistake was a mutual mistake of the parties: Newton v. Hull, 90 Cal. 487, 27 Pac. 429.
Complaint to reform a deed on ground of mistake.—The substance of a complaint in a recent action, in which the judgment for plaintiff was affirmed, is as follows: Plaintiff alleges that on the 2d day of November, 1893, defendant was the owner of certain lands in Mendocino County, consisting of 200 acres, which are described in paragraph 1 of the complaint; that on said date the defendant agreed to sell, and did sell, said real property to one Mrs. Louise D. Milks; "that on the said 2d day of November, 1893, the defendant made, executed, and delivered his deed of conveyance, intending to convey and describe the lands hereinbefore, in paragraph 1 of this complaint, set forth and described, and no other, and said Mrs. Louise D. Milks received said deed fully believing that said deed conveyed the lands which she had purchased, to wit, the real property described in paragraph 1 of this complaint, and no other; that by a mistake of both parties to said instrument the said deed of conveyance did not truly or correctly describe the premises sold and intended to be described therein and thereby; that said deed of conveyance described certain of the property intended to be conveyed, but failed to include within the description certain other lands intended to be described therein. (Then follows a copy of the conveyance as it was executed. The manner in which the mistake occurred is also fully set forth, it being alleged that the same was due to the carelessness of the scrivener in writing the word "of" instead of the word “and” in the following portion of the description: N. 12 of the S. E. quarter and the S. E. quarter of the N. E. quarter of section 21," thereby causing to be conveyed 115 acres less than was intended by the parties.] That thereafter, to wit, on the 11th day of December, 1905, the said Mrs. Louise D. Milks had not discovered the said mistake, and on the said date for a valuable consideration sold to plaintiff herein the lands hereinbefore, in paragraph 1 of this complaint, described; that in making out and executing the deed of conveyance of said lands by the said Mrs. Louise D. Milks to this plaintiff, the scrivener drafting said instrument used the deed of conveyance containing the erroneous description from defendant to the said Mrs. Louise D. Milks." The same mistake was made, the parties believing that the land intended to be conveyed was properly described. The plaintiff did not discover said mistake until about the first of November, 1906. Desiring to sell said property, he had an abstract prepared for the intending purchaser. The attorney who examined said abstract noticed the mistake and called it to the attention of plaintiff, who had, up to that time, fully believed that the aforesaid deeds correctly and truly described the lands actually purchased and paid for and intended to be conveyed by said grantors. The plaintiff immediately demanded of defendant Walton, and of the said Mrs. Louise D. Milks, that each of them execute to plaintiff a new deed to said premises correcting said mistake. Mrs. Milks did so, but “the defendant refused, and still refuses, to either make, execute, or deliver a new or corrected deed to said premises, and refused, and refuses, in any manner to correct said mistake." It is expressly averred that the defendant accepted payment in for a the land intended and believed to b conveyed by said deed of November 2, 1893: Hart v. Walton, 9 Cal. App. 502, 99 Pac. 719.
Page $ 459. Code provisions
1782 $ 460. Complaints (or petitions]
1783 Form No. 1074. To rescind for fraud
1783 Form No. 1075. To rescind for mistake, and to recover pay.
ment made in escrow.-Stating cause also in
common count for money had and received 1784 Form No. 1076. Cross-complaint in action to rescind contract
for purchase of real estate, and to recover
1786 $ 461. Answer
1788 Form No. 1077. Defense of no consideration, and of matters
that would justify a decree of rescission.. 1788 § 462. Judgment [or decree]
1789 Form No. 1078. For defendant and cross-complainant.-Action
to rescind contract for purchase of real es.
1789 § 463. Annotations.
$ 459. CODE PROVISIONS.
When rescission may be adjudged. California, § 3406. The rescission of a written contract may be adjudged, on the application of a party aggrieved:
1. In any of the cases mentioned in section sixteen hundred and eighty-nine; or,
2. Where the contract is unlawful, for causes not apparent upon its face, and the parties were not equally in fault; or,
3. When the public interest will be prejudiced by permitting it to stand. (Kerr's Cyc. Civ. Code.)
For section 1689, referred to in the above section, see ch. XXI, p. 310.
The following statutes treat of the same subject as the foregoing:
Montana, Rev. Codes 1907, § 6112. North Dakota, Rev. Codes 1905, $ 6623. South Dakota, Rev. Codes 1903, C. C. $ 2353.
Rescission for mistake.
California, $ 3407. Rescission cannot be adjudged for mere mistake, unless the party against whom it is adjudged can be restored
to substantially the same position as if the contract had not been made. (Kerr's Cyc. Civ. Code.)
The following statutes treat of the same subject as the foregoing:
Montana, Rev. Codes 1907, § 6113. North Dakota, Rev. Codes 1905, $ 6624. South Dakota, Rev. Codes 1903, C. C. § 2354.
Judgment as against party seeking rescission. California, § 3408. On adjudging the rescission of a contract, the court may require the party to whom such relief is granted to make any compensation to the other which justice may require. (Kerr's Cyc. Civ. Code.)
The following statutes treat of the same subject as the foregoing. Where the provisions differ materially from the above, a further reference is made in a lettered note succeeding and the difference there shown:
a Montana, Rev. Codes 1907, § 6114. North Dakota, Rev. Codes 1905, $ 6625. South Dakota, Rev. Codes 1903, C. C. $ 2355.
a Montana, $ 6114, substantially same as Cal. Civ. Code $ 3408, except in the last line, after "compensation," insert “or restoration.”
§ 460. COMPLAINTS (OR PETITIONS). FORM No. 1074—To rescind for fraud.
[Title of court and cause.]
19 the plaintiff was the owner in fee-simple and possessed of the following lands and tenements, situate and lying in the county of in this state, and bounded and described as follows: [Give description of same.]
2. That the defendant, by fraud, procured and induced the plaintiff to execute and deliver to the defendant a deed of said premises, conveying the same to the defendant in fee, by fraudulently representing to the plaintiff that said deed of conveyance was a mere lease of said premises to the defendant for the term of
years, and the plaintiff relying upon said representations of the defendant, and being unable because of blindness (or other defect, or state other circumstances of fraud), did execute and deliver the same as and for, and believing it to be, such lease, and for no other purpose whatWherefore, the plaintiff prays that the said deed be ordered to be delivered up and canceled, and that plaintiff have such other relief as may be just and his costs herein.
A. B., Attorney for plaintiff. [Verification.)
FORM No. 1075—To rescind for mistake, and to recover payment made in
escrow.-Stating cause also in common count for money had and received.
(In Johnson v. Withers, 9 Cal. App. 52; 98 Pac. 42.) [Title of court and cause.) [Introductory part.]
1. That at all the times herein mentioned the defendant State Bank and Trust Company of Los Angeles was, and now is, a banking corporation organized under the laws of the state of California.
2. That on or about June 19, 1906, plaintiffs entered into a parol contract with defendant Withers, whereby plaintiffs undertook and agreed to purchase of and from said Withers for mining purposes a quantity of land located in the county of Riverside, state of California, described as follows, to wit: (Here follows description of said lands.]
3. That the purchase price for said interest in said lands was to be $20,000, payable as follows: $1,000 cash on the making of the agreement; $9,000 on or before July 5, 1906; and $10,000 on or before August 5, 1906; that it was further agreed by and between plaintiffs and said Withers that said Withers should immediately deposit his deed to said above-described property with the defendant State Bank and Trust Company of Los Angeles, said deed to be held by said company in escrow until the purchase price of property shall be fully paid; that plaintiffs should make all payments to said State Bank and Trust Company of Los Angeles, said amounts so paid to be held by said company as deposits for the parties until the time that the purchase price should be fully paid.
3. That pursuant to said contract so made as aforesaid plaintiffs, on or about June 19, 1906, paid to said State Bank and Trust Company of Los Angeles the sum of $1,000, and said State Bank and Trust Company accepted such payment, and receipted therefor, with full knowledge of the terms and conditions of plaintiffs' said contract with defendant Withers.