Emplament affenn 1. IN GENERAL PURVINES et al. v. HARRISON. (Supreme Court of Illinois, 1894. 151 Ill. 219, 37 N. E. 705.) Bill by Frances A. Harrison against Frances Purvines and others. Complainant obtained a decree. Defendants bring error. MAGRUDER, J. This is a bill filed on July 18, 1890, by the defendant in error, Frances A. Harrison, the mother of Peyton Asbury Purvines, deceased, by a former husband, against Frances Purvines, the minor daughter and only child of said Peyton Asbury Purvines, deceased; Samuel H. Claspill, the guardian of said minor; Alfred B. Purvines, the administrator of said deceased; and Edward Wyatt, a tenant occupying the premises hereinafter referred to under a lease from the complainant in the bill. The bill is filed for the purpose of reforming a deed of about 60 acres of land, executed by the defendant in error to her son, said Peyton A. Purvines, in his lifetime. The deed sought to be reformed bears date January 31, 1889, was acknowledged August 30, 1889, and recorded on September 2, 1889. It is a warranty deed, and conveys about 60 acres of land in Sangamon county to the grantee. The bill alleges that it was the intention of the complainant and her deceased son to insert words in the deed reserving to her a life estate in the land, so that she could have the use of it, and the rents from it, as long as she lived; but that, by the mutual mistake of the parties to the deed, and by an oversight on the part of the scrivener who drew it, such reservation was unintentionally omitted from the deed. The prayer of the bill is that the deed be reformed by inserting therein a_reservation of the life estate to the grantor. A guardian ad litem was appointed for the minor, who answered; and answers denying the allegations of the bill were filed by said guardian and tenant, to which replications were filed. After proofs taken and hearings had, the circuit court rendered a decree finding the allegations of the bill to be true, and directing that the deed be 1 For discussion of principles, see Eaton on Equity (2d Ed.) §§ 314-319. reformed in the respect mentioned, and that such reformation take effect as of the date of the deed, and that the rents and profits of the land after that date should belong to the complainant. Evidence was introduced showing that an inquisition as to the insanity of the complainant was had in the county court of said county, and a verdict of the jury was returned therein on January 25, 1892, finding her to be an insane person; and thereafter her insanity was suggested in the present suit, and one B. F. Irwin was appointed to prosecute the same as next friend. Application had been previously made to the court, in March, 1890, for the appointment of a conservator for defendant in error as a distracted person, but upon the trial of the issue whether she was a distracted person verdict had been returned in her favor. Some evidence was introduced tending to show that when she made the deed her mind had begun to fail, and she showed signs of absent-mindedness not theretofore noticeable in her. Her son, Peyton A. Purvines, had been divorced from his wife before he died, and his habits up to the time of his death were those of a very intemperate man. There is no evidence, however, that he practiced any fraud upon his mother in order to obtain the deed. He lived with her at that time upon a farm of 80 acres, owned by her, and the consideration as expressed in the deed is "one dollar, and natural love and affection." He died. unmarried and intestate on February 22, 1890, leaving, as his only child and heir at law, the minor plaintiff in error, Frances Purvines. After a careful examination of the evidence, we think that both parties executed the deed under a common or mutual mistake, and did what neither of them intended to do. Warrick v. Smith, 137 Ill. 504, 27 N. E. 709. To justify the reformation of a written instrument upon the ground of mistake, it is necessary-First, that the mistake should be one of fact, and not of law (Sibert v. McAvoy, 15 III. 106); second, that the mistake should be proved by clear and convincing evidence (2 Pom. Eq. Jur. § 862); third, that the mistake should be mutual and common to both parties to the instrument (Sutherland v. Sutherland, 69 Ill. 481). A mistake of law is an erroneous conclusion as to the legal effect of known facts. Hurd v. Hall, 12 Wis. 113. The construction of words is a matter of law. Sibert v. McAvoy, supra. Where parties instructed an officer to prepare a quitclaim deed for their execution, but he drew a deed containing language which amounted in law to a covenant of title in fee, and they signed the deed knowing that such language was in it, they were held to have been mistaken in the law, that is to say, in the legal effect of the language used,--and in the legal consequences of retaining such language in the deed. Gordere v. Downing, 18 Ill. 492. Mistake of fact has been defined to be a mistake, not caused by the neglect of a legal duty on the part of the person making the mistake, and consisting in an unconscious ignorance or forgetfulness of a fact, past or present, material to the contract, or belief in the present existence of a thing material to the contract which does not exist, or in the past existence of a thing which has not existed. 2 Pom. Eq. Jur. § 839. It is manifest that the mistake in the present case was one of fact, and not one of law, because it had reference to the accidental omission from the deed of words which were intended to be inserted therein; that is to say, words reserving to the grantor a life interest. In Sibert v. McAvoy, supra, we said: "It is where parties intended to insert words in a contract which were by accident omitted that equity can reform the contract by inserting them. *The insertion of words is a matter of fact. It is for mistakes of fact alone that contracts may be reformed.” Nor can it be said in this case that the mistake occurred on account of any want of reasonable diligence to ascertain the facts, or on account of any neglect, amounting to a violation of legal duty. 2.Pom. Eq. Jur. § 856. Where the relation of the parties is one of confidence, such as that which existed here between mother and son, and where a party executing the contract has a failing or weak mind arising from suffering or old age, the same degree of vigilance and care is not expected or required as is expected or required in the ordinary dealings of men with one another. Day v. Day. 84 N. C. 408. In Day v. Day, supra, a deaf and aged father made a deed to his son, in whom he reposed confidence, conveying a tract of land in fee, but omitting, either by mistake or contrivance of the son, under whose direction the deed was drawn, to reserve a life estate to the grantor; and it was held that an equity arose in favor of the father to have such instrument reformed in accordance with the original intention of the parties. Counsel for plaintiffs in error claim that the evidence does not show want of mental capacity in the defendant in error, or want of capacity on her part to understand the ordinary affairs of life. This may be true. The proof shows merely a weakening of the mental powers, growing out of domestic trouble, and grief for the recent death of her aged parents. This proof was not introduced for the purpose of showing such insanity as would avoid the deed; but in a proceeding to reform the deed it tended; in connection with the relations of the parties and other attending circumstances, to excuse any apparent want of care in examining the phraseology of the deed. We think that the proof of a mutual mistake was clear and convincing. The burden of proof was upon the complainant, but the defendants offered no testimony whatever to contradict her witness. Some time after the deed was executed the deceased applied for a loan of money to be secured by mortgage upon his interest in the land. He then discovered for the first time that his mother's life estate had not been reserved in the deed. There is abundant, evi573 dence, given by quite a number of witnesses, that he admitted the mistake, and stated that it was the intention and agreement to retain a life estate for her in the deed, and that he intended to correct the mistake. He died, however, without doing so. These declarations, made many times, and challenged by no opposing evidence, were admissions against his own interest. It is well settled that parol proof may be received to show a mistake in a written instrument. McLennan v. Johnston, 60 Ill. 306. For the reasons here stated, and deeming it unnecessary to enter into a detailed discussion of the evidence, we think that the decree of the circuit court was correct, and it is accordingly affirmed. Affirmed. PHILLIPS, J., having heard this case in the circuit court, took no part here. ment 2. STATUTE OF FRAUDS ALLEN v. KITCHEN. (Supreme Court of Idaho, 1909. 16 Idaho, 133, 100 Pac. 1052, L. R. A. 1917A, 563, 18 Ann. Cas. 914.) Appeal from District Court, Ada County; Fremont Wood, Judge. Specific performance by Hardy L. Allen against John Kitchen. Judgment for defendant, and plaintiff appeals. Affirmed. AILSHIE, J. This action was instituted in the district court for the reformation and specific performance of a contract for the sale of real estate. The trial court sustained a demurrer to plaintiff's amended complaint, and entered judgment of dismissal and for costs against the plaintiff. The contract upon which the action was brought is as follows: "This article of agreement, made and entered into this 21st day of and differences due and payable must be settled on or before the 28th day of May, except as otherwise agreed in above contract. "F. M. Eby, Witness." "First party, H. L. Allen. It is first contended that this contract is sufficient to admit oral evidence showing the location of the lots and property intended to be conveyed. It will be observed that the lots to be sold and transferred by the party of the first part are described as "lots 11, 12, and 13, in block 13, Lemp's addition," and that the property to be sold and transferred by the second party is described as "lot 27, Syringa Park addition, consisting of 5 acres." The contract nowhere shows or discloses the city, town, county, or state in which it was executed; nor does it show the city, county, state, or other civil or political division or district in which any of the property is situated. It is contended, however, by counsel for appellant, that parol evidence is admissible for the purpose of completing the description, so as to show the location of Lemp's addition and of Syringa Park addition. It is argued with much skill and ingenuity by appellant's counsel that oral evidence is admissible for the purpose of showing the city, town, or village to which these tracts of land are additions. Counsel has devoted a great deal of labor in collating the decisions upon this question, but our examination of them fails to disclose a case identical with this. Hollis v. Burgess, 37 Kan. 487, 15 Pac. 536, was a case where the contract consisted of a number of letters. The specific description of the property running through all these letters was given as the "Snow Farm." The court held that where the land sold was so described, and it appeared that it was commonly designated and known throughout the neighborhood where situated by such a name, extrinsic evidence was admissible to "apply the description" to the land intended to be sold. It should not be overlooked, however, that all the letters in that case disclosed that the land was situated in Clay county, Kan., and that all the letters written by the owner of the land were written from Clay Center, Clay county, Kan. The county and state in which the property was situated was therefore designated and established by the several communications constituting the contract. Oral evidence was therefore unnecessary to complete the description, but was rather necessary for the purpose of identifying and applying the description to the tract of land described by the writing. In Dougherty v. Chesnett, 86 Tenn. 1, 5 S. W. 444, the Supreme Court of Tennessee held a lease valid where the property let was described as follows: "All the right to quarry marble on the farm of Henderson Fudge, known as 'Rose Hill.'" It is also to be noted in this case that the instrument recited on its face that the lessor, the owner of the property, lived in Hawkins county, Tenn., and the court) observed that from such recital "it will reasonably be inferred that the lands lay in that county." Another thing that should not be overlooked |