March 27, 1950.
1. Deeds — mineral interests — undisclosed intention — unilateral mistake.
A deed was made for a paid consideration, based on mineral acre, to a half interest in the minerals under eighty acres of land. The grantee did not know and was not informed by them that the grantors then owned only a half interest in the minerals and he made no representations to grantors in that regard and did nothing to prevent grantors from reading and examining the deed which they executed: Held, that an undisclosed intention on the part of grantors to convey only a half interest of their half interest would not justify or sustain a cancellation of grantee's interest so as to cut it down to a fourth interest therein, and the result remains the same if in truth the grantors at the time by a unilateral mistake on their part overlooked or neglected the fact that they owned only a half interest in the minerals in the eighty acres.
2. Equity — mistake — reasonable diligence.
Equity does not extend relief because of a mistake if the party could by reasonable diligence have ascertained the real facts; nor where the means of information are open to both parties and no confidence is reposed, and even in cases where the enforcement of the contract would be unconscionable it is required that the party making the mistake shall have been in the exercise of ordinary diligence — a mere improvident contract supplies no basis.
3. Equity — unilateral mistake — inattention, neglect, misconduct.
In order that the doctrine of unilateral mistake may be invoked for equitable relief, such mistake must not be merely the result of inattention, personal negligence or misconduct on the part of the party applying for relief.
4. Contracts — meeting of minds — meaning of term.
There must be a meeting of the minds of the parties to a contract, but in the legal sense this means that there must be an unsuccessful attempt by the parties to get their minds in accord; and if a party does a thing deliberately and intentionally he may not be heard to say that he entertained a different purpose which he refused or neglected to disclose.
5. Contracts — meeting of minds — what the law holds parties to have intended.
In the law of contracts minds must be held to have met in all open convenants openly arrived at; and the law which parties invoke to aid them must also hold them to have intended to do what they did under no compulsion or misleading.
Headnotes as approved by Alexander, J.
APPEAL from the chancery court of Wayne County; THOMAS Y. MINNIECE, Chancellor.
Butler, Snow O'Mara, and Snow Covington, for appellant.
I. The lower court correctly held that the appellees were not entitled to reformation on the ground of mutual mistake. 53 C.J., Reformation of Instruments, Sec. 58; Frierson v. Sheppard, 29 So.2d 726; Levin v. Berstein, 169 N.E. 430; Whitney Central National Bank v. First National Bank, 158 Miss. 93, 130 So. 99.
II. Appellees are not entitled to reformation or rescission on the grounds of any misrepresentations or on account of any alleged unilateral mistake on the part of Mr. and Mrs. Davis. Alliance Tr. Co., Ltd. v. Armstrong, 185 Miss. 148, 186 So. 633; 59 A.L.R., pp. 809, 818; American Oil Co. v. Williamson, 154 Miss. 441, 122 So. 488; 9 Am. Jur., Cancellation of Instruments, Sec. 34; 12 Am. Jur., Contracts, Section 133; 20 Am. Jur., Evidence, Sections 1252, 1253; 23 Am. Jur., Fraud Deceit, Section 155; 36 Am. Jur., Mistake, p. 456; Anderson v. Hill, 12 S. M. 679; Anderson v. Barnett, 5 How. 165; Board of Com. v. Younger, 29 Cal. 172; Caulk v. Burt, 112 Miss. 660, 73 So. 618; Continental Jewelry Co. v. Joseph, 140 Miss. 582, 105 So. 639; Farnsworth v. Duffner, 142 U.S. 43, 35 L.Ed. 931; Frierson v. Sheppard, 201 Miss. 603, 29 So.2d 726; Fornea v. Goodyear Yellow Pine Co., 181 Miss. 50, 178 So. 914; Griffith, Chancery Practice, Section 589, p. 658; Hawkins v. Hawkins, 50 Cal. 558; Hubenthal v. Spokane L. Railway Co., 43 Wn. 677, 86 Pac. R. 955; J.J. Newman Lbr. Co. v. Robbins, 203 Miss. 304, 34 So.2d 196; Johnson v. Covenant Mutual Life Ins. Co., 93 Mo. App. 580; Jourdan v. Albritton, 146 Miss. 651, 111 So. 591; Kimmell v. Skelly, 130 Cal. 555; Koenig v. Calcote, 199 Miss. 435, 25 So.2d 763; Kropp v. A. V. Ry. Co., 129 Miss. 616, 92 So. 691; Maryland Cas. Co. v. Adams, 159 Miss. 88, 131 So. 544; McCormick v. Molburg, 43 Iowa 561; McCubbins v. Morgan, 199 Miss. 153, 28 So.2d 926; N.O. N.E.R.R. Co. v. Morrison et al., 203 Miss. 791, 35 So.2d 68; New York Life Ins. Co. v. Gill, 182 Miss. 815, 182 So. 109; Pilot Life Ins. Co. v. Wade, 153 Miss. 874, 121 So. 844; Slaughter v. Gerson, 13 Wall. 379, 20 L.Ed. 627; Stephens v. Keener, 137 S.W.2d 253; Toledo Computing Scale Co. v. Garrison, 23 App. D.C. 243, 249; Wall v. Wall, 177 Miss. 743, 171 So. 675.
III. Appellees have ratified the mineral deed to appellant acts recognizing the deed as valid and subsisting and as vesting in appellant an undivided one half interest in the lands covered thereby. A.L.I., Restatement of Contracts, Sec. 487; 2 Am. Jur., Agency, Sec. 223; 12 Am. Jur., Contracts, Sec. 315; 12 Am. Jur., Contracts, Sec. 444, 449; Brechwald v. Small (Iowa) 161 N.W. 20; Crabb, et al. v. Wilkinson, et al., 202 Miss. 274, 32 So.2d 356; 9 C.J., p. 1199; 12 C.J.S., Cancellation of Instruments, Sec. 38; Georgia Pacific Railway Co. v. Brooks, 66 Miss. 583; Gulf Refining Co. v. Travis, 29 So.2d 100; Higham v. Harris, 108 Ind. 246; Hofgesang v. Silver, 232 Ky. 503, 23 S.W.2d 945, 68 A.L.R. 1481; Koenig v. Calcote, 199 Miss. 435, 25 So.2d 763; Note 1, L.R.A. 826; Note 9 L.R.A. 607; Nelson Sons v. Wilkins Parks, 151 Miss. 492, 118 So. 436; Robbins v. Martin, 18 La. App. 233, 138 So. 132; Whittington v. H.T. Cottam, 158 Miss. 847, 130 So. 746.
IV. Appellees' cause of action is barred by the Statute of Limitations, Sections 709, 710, Code 1942. 1 Am. Jur., Adverse Possession, Secs. 2, 3, 119; 34 Am. Jur., Limitations of Actions, Secs. 20, 381; Cook v. Farley, 195 Miss. 638, 15 So.2d 352; 2 C.J.S., Adverse Possession, Sec. 2, p. 53, Note 22, Sec. 19, p. 534, Note 48; Dingey v. Paxton, 60 Miss. 1038, 1053; Hooper v. Walker, 201 Miss. 150, 24 So.2d 72; Kennedy v. Sanders, 90 Miss. 524, 43 So. 913; Newman v. J.J. White Lbr. Co., 162 Miss. 581,
V. Appellees are barred from relief by their unreasonable delay and failure to take timely action to rescind the mineral conveyance. Ayers v. Mitchell, 3 S. M. 683; A. V. Ry. Co. v. Kropp, 129 Miss. 616, 92 So. 692; 9 Am. Jur., Cancellation of Instruments, Sec. 46; 19 Am. Jur., Equity, Sec. 505, p. 350; Carter v. Price, 85 W. Va. 744, 102 S.E. 685; 9 C.J.S., Cancellation of Instruments, p. 1202, Note 66; 12 C.J.S., Sec. 51, p. 1023; 12 C.J.S., Cancellation of Instruments, p. 1024, footnote 8; 30 C.J.S., Equity, Sec. 128b, p. 553; Jones v. Smith, 33 Miss. 215; Pintard v. Martin, S. M., Chancery 126; The TwinLick Oil Co. v. William Marbury, 91 U.S. 587, 23 L.Ed. 328, 331; Walker-Lucas-Hudson Oil Co. v. Hudson, 272 S.E. 836, 168 Ark. 1098; Whittington v. H.T. Cottam, 158 Miss. 847, 130 So. 746; Wynn v. Kendall, 122 Miss. 809, 85 So. 85.
Conclusion. Before finally submitting this case to the Court, we wish to briefly point out a few salient points from the practical standpoint.
In considering this case it should be remembered that at the time the mineral deed in question was executed by Mr. and Mrs. Davis and delivered to Mr. Hunt, the parties were dealing at arm's length. Mr. Hunt was a complete stranger to Mr. and Mrs. Davis. He had never before seen them and they had never before seen him. Mr. Hunt approached Mr. and Mrs. Davis and immediately made known his business and the transaction was from beginning to end a business transaction between parties who were complete strangers to each other. No relation of trust or confidence existed between the parties and neither party had any reason, or right, to rely upon the other.
It should be remembered too that there is involved here a solemn, written instrument, plain and unambiguous in its terms, which both Mr. and Mrs. Davis admit they executed.
It strikes us as being too clear for argument that the transaction in question was on a per acre basis; that is, on the basis of $1.00 per mineral acre. Everyone who has had any experience whatever with trades involving mineral rights knows that this is the manner mineral and royalty interests are dealt in. We can safely say that it is practically the universal custom in this territory and has been throughout the years. Mr. Davis owned 200 land acres. An undivided one-half interest in the minerals under this land would, of course, be 100 mineral acres. On the basis of $1.00 per acre this would, of course, be $100.00. Mr. Hunt bought 100 mineral acres. (Mr. Davis deeded him 100 mineral acres.) Mr. Hunt paid Mr. Davis for 100 mineral acres at $1.00 per acre or $100.00. Mr. Davis took the $100.00 for 100 mineral acres at $1.00 per acre and at the time was delighted to get it. The mineral deed executed by Mr. and Mrs. Davis calls for an undivided one-half interest in the minerals under 200 acres, or 100 mineral acres, and provides for a consideration of $100.00, and $100.00 was the consideration actually paid and accepted. There is described in the mineral deed 200 land acres, including the eighty acres in question. If it had been intended to convey only a fourth interest under the eighty acres involved, as Mr. Davis contends, this would have been one-half under 120 acres, or sixty mineral acres, and one-fourth under eighty acres, or twenty mineral acres, making a total conveyed of eighty mineral acres. The consideration for the eighty mineral acres at $1.00 per mineral acre would have been $80.00 and not $100.00, the consideration recited in the instrument and the amount actually paid by Mr. Hunt and gladly accepted by Mr. and Mrs. Davis.
Again, the Court has held that the evidence does not show that Mr. Hunt had knowledge that Mr. Davis owned only an undivided one-half interest in the minerals under the eighty acres of land in question. The proof is undisputed that Mr. Hunt inquired of Mr. Davis if he had sold any of his minerals and Mr. Davis informed him that he had not. Therefore, throughout the transaction Mr. Hunt had no other idea but that Mr. Davis owned all the minerals under his entire 200 acres of land. But both Mr. and Mrs. Davis knew otherwise and knew that they owned only one-half of the minerals under the eighty acre tract involved here.
And again, it will be recalled that Mr. Davis owned a total of 200 acres of land. The full 200 acres is described in the mineral deed. Mr. Davis admits he intended to convey a one-half interest in the minerals under 120 acres of this land, but contends that he intended to convey only one-half of the one-half interest owned by him under the eighty acres involved. If the conveyance had been written so as to convey the interest as contended by Mr. Davis, of necessity it would have read "an undivided one-half interest in, on and under that certain tract or parcel of land situated in Wayne County, Mississippi, described as North West Quarter of South West Quarter, Section 2, Township 9 North, Range 9 West, and North Half of South West Quarter, Section 35, Township 10 North, Range 9 West, and also an undivided one-fourth interest in, on and under the South West Quarter of the North West Quarter and the North West Quarter of the North West Quarter of Section 2, Township 9 North, Range 9 West."
Both Mr. and Mrs. Davis were persons of above average intelligence. Both had executed at least two oil and gas leases on their land and at least one deed of trust or mortgage. They had every opportunity to read the mineral deed in question.
It stretches credulity to the breaking point to be asked to swallow the testimony of these parties to the effect that they were induced not to read this instrument by anything said or done by Mr. Hunt, a complete stranger to them, when they both admit they had the document before them, had every opportunity to read it and both deliberately signed it.
They both admit that they had the instrument in their hands; that they laid it down in front of them on the table and signed it. Look at it. It includes 200 acres of land. If it had been written as Mr. Davis claims he intended it to be written, it would have read "an undivided one-half interest in the minerals under 120 acres of the land and an undivided one-fourth interest under eighty acres of the land." We submit that no grown person of the intelligence of Mr. and Mrs. Davis could have had this instrument in front of him without seeing it sufficiently to know that it conveyed the same interest under all the land as it conveyed under any part of the land described in the instrument.
Laying aside all the legal propositions involved and taking only the facts and circumstances disclosed by the record in this case, can it be said that it has been shown by clear and convincing evidence, by a preponderance of the evidence, by any possible evidence whatsoever, that Mr. Hunt made any misrepresentation whatsoever to these appellees at the time they executed the instrument in question, or any misrepresentation upon which appellees had any right to rely.
Courts universally have held that written contracts between parties must not be treated lightly. The Courts universally are reluctant to disturb a written contract entered into by parties having possession of their faculties. The reason for this rule is clearly illustrated by the instant case. A written contract is not subject to the frailty of memory. As was pointed out at the outset of the first opinion of the chancellor in this case, "It is difficult for witnesses to recall conversations that took place years ago without unconsciously putting these statements in the light of what they know at present." There was never a truer saying.
There is nothing whatsoever in the record in this case which would indicate anything but that Mr. Hunt dealt fairly, cleanly and above board with these people. Mr. Hunt bought 100 mineral acres, which was an undivided one-half interest in the minerals under the 200 acre tract owned by his grantors. He paid them for it. These people sold him this interest and took his money for it and kept it. This is exactly the way the instrument reads. Under the evidence in this case, we say that to take away from Mr. Hunt what he has bought and paid for would be taking from him that which is his. All Mr. Hunt is asking for is just that which he bought and paid for.
Broach Ethridge, Arthur G. Busby, Jr., and Frank Clark, for appellees.
I. Consideration of the question of fraud.
(a) Mutual mistake or mistake of one party accompanied by fraudulent knowledge or procurement of another party. Hawkins v. Blair, et al., 36 So. 246; Moore, et al. v. Crump, et al., 84 Miss. 612, 37 So. 109; Pomeroy's Equity Jurisprudence (Fifth Ed.) Vol. 3, p. 383, Sec. 870;
(b) Necessity of knowledge vel non of falsity of representations.
(2) Innocent misstatements. 23 Am. Jur., p. 932; Pomeroy's Equity Jurisprudence (Fifth Ed.) Vol. 3, p. 442, Sec. 888; Restatement of the Law, Contracts, Sec. 476, Comment b, Restitution, Sec. 9; Vincent v. Corbitt, 94 Miss. 46, 47 So. 641, 21 L.R.A. (N.S.) 85; Williston on Contracts, Vol. III, p. 2668, Sec. 1550.
II. Where either fraud or mistake is involved, failure to read instrument is not such negligence as will preclude relief, where the party failing to read relies on the other party drawing the instrument. Dickson v. Morgan, 154 Tenn. 389, 285 S.W. 558; Nash Mississippi Valley Motor Co. v. Childress, 156 Miss. 157, 125 So. 708; J.J. Newman Lumber Co. v. Robbins, 203 Miss. 304, 34 So.2d 196; White, et al. v. Union Producing Company, 140 F.2d 176, 153 F.2d 856, 156 F.2d 58, and 157 F.2d 254, Cert. Den. by Mem. Dec., 329 U.S. 792, 67 S.Ct. 569.
III. Failure of minds of parties to meet.
(a) Observations concerning relief granted by the court on the grounds of unilateral mistake.
(b) Consideration of general authority on the necessity of the meeting of minds of parties to a contract. Davis v. Town of Seymour, 2180, 1004, 1005, 59 Conn. 531, 13 L.R.A. 210; Harding v. Knapp, 8 N.Y.S.2d 224, 226; Wm. J. Lemp Browning Co. v. Secor, 96 P. 636, 639, 21 Okla. 537; Imperial Water Co. No. 1 v. Imperial Irr. Dist., 62 Cal.App. 286, 217 P. 88; E.B. Wicks Co. v. Moyle, 103 Utah 554, 137 P.2d 342.
(d) Additional consideration of general authority. 59 A.L.R. 807; Bass v. Zinke, 218 Mich. 552, 188 N.W. 512; Calverly v. Williams, 1 Ves. Jr. 210, 30 Eng. Reprint 306; Crowe v. Lewin, 95 N.Y. 423; Chicago St. P.M. O.R. Co. v. Washburn Land Co., 165 Wis. 125, 161 N.W. 358; Dzuria v. Pierce, 216 Mass. 132, 103 N.E. 296; Fleisher v. McGehee, 111 Ark. 626, 163 S.W. 169; Frazer v. State Bank, 101 Ark. 134, 141 S.W. 941; Harper v. Newburgh, 159 App. Div. 695, 145 N.Y. Supp. 59; Hatcher v. Union Trust Co., 174 Minn. 241, 219 N.W. 76; Hobbs v. Esquimalt N.R. Co., 6 B.C. 228; Hurst v. National Bond Invest. Co., 117 So. 792, 59 A.L.R. 807; Nadeau v. Maryland Casualty Co., 170 Minn. 326, 212 N.W. 595; Pacific Mut. L. Ins. Co. v. Glaser, 245 Mo. 377, 45 L.R.A. (N.S.) 222, 160 S.W. 549; Paget v. Marshall (Eng.), L.R. 28, Ch. Div. 255; Thwing v. Hall, 40 Minn. 184, 41 N.W. 815; Werner v. Rawson, 89 Ga. 619, 15 S.E. 813.
(e) Consideration of Mississippi cases on unilateral mistake. Brooks v. Brooks, 145 Miss. 845, 111 So. 376; Edwards Hotel Company v. Chambers, 141 Miss. 487, 106 So. 763; Insurance Co. v. McIntosh, 86 Miss. 236, 38 So. 775; Wall, et al. v. Wall, et ux., 177 Miss. 743, 171 So. 675; Yazoo M.V.R. Co. v. Jones, 114 Miss. 787, 75 So. 550.
IV. Considerations of so-called partial rescission. Tillery v. Jones, (Miss.) 43 So.2d 650.
V. There has been no ratification by appellees of the mineral deed in question. Ark. Pipe Line Co. v. Bennett, 290 S.W. 929; 12 C.J.S., Cancellation of Instruments, Sec. 38, p. 996; Gulf Refining Co., et al. v. Travis, 201 Miss. 336, 29 So.2d 100, 30 So.2d 398; Summers on Oil Gas, Vol. 3, Sec. 590, p. 423.
VI. Sections 709 and 710 of the 1942 Code do not bar the appellees from recovery herein. Grant v. Montgomery, 193 Miss. 175, 5 So.2d 491; Secs. 709, 710, Code 1942; Newman v. J.J. White Lumber Co., 162 Miss. 581, 139 So. 838.
VII. There is no laches which will preclude recovery by appellees herein.
(a) General consideration of laches. 19 Am. Jur., Equity, Sec. 498 (and notes cited) and Sec. 508; Bailey v. Sayle, 40 So.2d 618; 30 C.J.S. Equity, Sec. 120, p. 543; Curtis v. Maryland Baptist Union Ass'n., 176 Md. 430, 5 A.2d 836, 121 A.L.R. 1516; Patterson v. Hewitt, 11 N.M. 1, 66 P. 552, 55 L.R.A. 658, 195 U.S. 309, 49 L.Ed. 214, 25 S.Ct. 35; Reynolds v. Summer, 126 Ill. 58, 18 N.E. 334, 1 L.R.A. 327, 9 Am. St. Rep. 523; Pomeroy's Equity Jurisprudence, Sec. 419d; Sample, et al. v. Romine, 193 Miss. 706, 8 So.2d 257.
(b) Consideration of Mississippi cases on laches. Bailey v. Sayle, (Miss.) 40 So.2d 618; Comans v. Tapley, et al., 101 Miss. 203, 57 So. 567, Ann. Cas. 1914B 307; Gulf Refining Co., et al. v. Travis, 201 Miss. 336, 29 So.2d 100, 30 So.2d 398; Hudson v. Belzoni Equipment Co., et al., 203 Miss. 212, 33 So.2d 796; Myerkort, et al. v. Warrington, et al., 19 So.2d 233; Sample, et al. v. Romine, 193 Miss. 706; Taylor, et al. v. Turner, 193 Miss. 410, 9 So.2d 644.
VIII. The statutes of limitation invoked and laches are only defensive remedies.
Butler, Snow O'Mara, and Snow Covington, in reply.
The appellees are not entitled to rescission or cancellation on the ground of any alleged fraud or misrepresentations. Alliance Trust Co., Ltd. v. Armstrong, 185 Miss. 148, 186 So. 633; 23 Am. Jur. Sec. 155; Continental Jewelry Co. v. Joseph, 140 Miss. 582; J.J. Newman Lumber Co. v. Robbins, 203 Miss. 304, 34 So.2d 196; Johnson v. Covenant Mutual Life Ins. Co., 93 Mo. App. 580; Jourdan v. Albritton, 146 Miss. 651, 111 So. 591; Kimmell v. Skelly, 130 Cal. 555; Koenig v. Calcote, 199 Miss. 435, 25 So.2d 763; Kropp v. A. V. Railway Co., 129 Miss. 616, 92 So. 691; McCubbins v. Morgan, 199 Miss. 153, 28 So.2d 926; Maryland Casualty Co. v. Adams, 159 Miss. 88, 131 So. 544; Nash Mississippi Valley Motor Co. v. Childress, 156 Miss. 157, 125 So. 708; White, et al. v. Union Producing Co., 140 F.2d 176, 153 F.2d 856, 156 F.2d 58, 157 F.2d 254.
Appellees are not entitled to rescission or partial cancellation on the ground of unilateral mistake. Alliance Trust Co., Ltd. v. Armstrong, 185 Miss. 148, 186 So. 633; 59 A.L.R. 809; 9 Am. Jur., Cancellation of Instruments, Sec. 34; Brooks v. Brooks, 145 Miss. 845, 111 So. 376; Coombs v. Wilson, 142 Miss. 502, 107 So. 874; Dunbar v. Aldridge, 79 Miss. 698, 31 So. 341; Edwards Hotel Co. v. Chambers, 141 Miss. 487, 106 So. 763; Goff v. Avent, 122 Miss. 86, 84 So. 134; Koenig v. Calcote, 199 Miss. 435, 25 So.2d 763; McCubbins v. Morgan, 199 Miss. 153, 28 So.2d 926; Stuart v. McCoy, 163 Miss. 551, 141 So. 899; Terre Haute Cooperage Co., Inc. v. Branscome, 203 Miss. 493, 35 So.2d 537; Tillery v. Jones, 43 So.2d 650; Y. M.V.R.R. Co. v. Jones, 114 Miss. 787, 75 So. 550; Werner v. Rawson, 89 Ga. 619, 15 S.E. 813; Wall v. Wall, 177 Miss. 743, 171 So. 675.
Appellees have ratified the mineral deed to appellant by actions recognizing the deed as valid and susbsisting and as vesting in appellant an undivided one-half interest in the lands covered thereby.
Appellees are barred by their unreasonable delay and failure to take timely action to rescind the mineral conveyance. 9 Am. Jur., Cancellation of Instruments, Sec. 46; 55 Am. Jur., Vendor and Purchaser, Secs. 613, 614; A. V. Ry. Co. v. Kropp, 129 Miss. 616, 92 So. 692; Carter v. Price, 85 W. Va. 744, 102 S.E. 685; 9 C.J., Cancellation of Instruments, p. 1202, Note 66; Simon v. Williams, 140 Miss. 854, 105 So. 487; Whittington v. Cottam, 158 Miss. 847, 130 So. 746.
Bill was filed by Hunt to remove certain alleged clouds upon his title to one-half the minerals under the West Half of the Northwest Quarter of Section 2, Township 9 North, Range 9 West. These clouds consist of a mineral deed from Davis to Clark and a mineral lease from Clark and Davis to Reynolds and Wedemeyer. The answer included a cross-bill by the defendants to cancel the title of Hunt to one-fourth the minerals. The chancellor entered a decree dismissing the cross-bill and awarding relief to Hunt. A rehearing was later held under amended pleadings stressing the allegation of a unilateral mistake. The chancellor set aside the former decree and entered a decree dismissing the bill and granting relief under the amended cross-bill allowing Hunt a refund to the extent of the interest Davis "intended" to convey, and damages. Hunt appeals.
The situation which developed was this: Hunt, who was not theretofore acquainted with Davis, sought out a mutual friend who in 1938 accompanied him to the home of Davis and offered to buy a one-half mineral interest in some two hundred acres of land. To this, Davis agreed, and the price paid was $100, or $1 per mineral acre. The deed was thereupon drawn up, using the description in tax receipts procured by Hunt, and it conveyed "an undivided one-half (1/2) interest in and to all the oil, gas and other minerals of every kind and character in or under" the described two hundred acres. It was later disclosed that Davis did not own all the minerals in the eighty acre tract first above described, but only one-half thereof. Thus, the deed conveyed all the minerals he owned therein.
Davis contends that his intention was to convey only one-half of all the minerals he owned. Hunt maintains that he bought and paid for one hundred minerals acres, or an undivided one-half mineral interest in all the lands. Testimony was adduced to support these respective views. (Hn 1) The chancellor found that "Mr. and Mrs. Davis did not intend to convey all their mineral interest under this particular tract," but also found that there was not sufficient evidence that Hunt knew Davis owned a one-half interest in the eighty acre tract and made no representations in that regard; that he did nothing to prevent Davis and his wife from reading and examining the deed which they executed; and that Hunt's information upon which he had the deed written was procured from tax receipts covering the land as such.
There is therefore eliminated any consideration of mutual mistake, or fraudulent representation such as was controlling in Tillery v. Lewis, Miss., 43 So.2d 650, and the narrow point for decision is the effect of a unilateral mistake on the part of Davis. In this connection, while the chancellor found that Davis did not intend to sell all his minerals on this tract, the mistake could well have been not that he did not intend to sell one hundred mineral acres but that he overlooked the extent of his residual interest. Support for this incidental view is found in the final decree by which Davis was required to refund to Hunt $20 representing a reduction of his interest therein from one-half or one-fourth, on the same basis of $1 per mineral acre.
Appellee has documented his claim to a partial reformation or rescission upon the basis of unilateral mistake with great industry and resourcefulness. Many authorities from other jurisdictions support his equitable claim. We do not pass these lightly by but examine the extent to which this Court has applied the doctrine. Recognition of the doctrine was given in Terre Haute Cooperage Inc. v. Branscome, 203 Miss. 493, 35 So.2d 537, 540, where we cited with approval Pomeroy's Equity Jurisprudence, 4th Ed. Vol. 2, p. 175, as follows: "it has been said that (Hn 2) equity would never give any relief from a mistake, if the party could by reasonable diligence have ascertained the real facts; nor where the means of information are open to both parties and no confidence is reposed; . . .". It was further recognized that there may be cases where relief may be proper if "enforcement of the contract would be unconscionable", yet only where the party making the mistake "was in the exercise of ordinary diligence." A mere improvident contract supplies no basis. Butterfield Lumber Co. v. Guy, 92 Miss. 361, 46 So. 78, 15 L.R.A., N.S., 1123, 131 Am. St. Rep. 540. Davis was not illiterate, and if a disparity in value be alone examined, it is appropriate to consider that the price paid in 1938 was then a prevailing figure, and it is without point to adjudge any possible inequity in the light of its appreciated value ten years later, after a producing well had been drilled thereon.
We have discussed the (Hn 3) doctrine of unilateral mistake in numerous other cases. In Wall v. Wall, 177 Miss. 743, 171 So. 675, 677, we held that such mistake "to constitute equitable relief, must not be merely the result of inattention, personal negligence, or misconduct on the part of the party applying for relief."
In Coombs v. Wilson, 142 Miss. 502, 107 So. 874, there was involved the efficacy of a deed of trust, which was executed to secure a debt of $294.10, to cover also an outstanding debt of $603.49. We stated that it was "beyond question that Bowen did not intend" to secure the latter debt. The controlling considerations were that there was no fraud or false representation by the beneficiary, and that Bowen executed it without reading it. So also in Koenig v. Calcote, 199 Miss. 435, 25 So.2d 763; McCubbins v. Morgan, 199 Miss. 153, 23 So.2d 926; Alliance Trust Co., Ltd., v. Armstrong, 185 Miss. 148, 186 So. 633. Cases cited by appellee from this Court do not contain the elements here present. Reference has also been made to Tillery v. Jones, supra, cited by both parties. The point of departure in that case was the fact of a false representation made by Tillery to Jones who was unacquainted with and uninformed as to the extent of his holdings which had been owned by his grandfather. Even in this case, one may detect that in view of the division among the members of the Court the decision may have been grudgingly made under the pressure of undeniable equities. See also Brooks v. Brooks, 145 Miss. 845, 111 So. 376.
(Hn 4) A variant of the doctrine of unilateral mistake is seen in the frequent assertion that there must be a meeting of the minds. We dealt with this subject recently in Ligon v. Philip Schalansky Brothers, Miss., 43 So.2d 881. Here, there was a definite agreement with appellee's agent, but the contract was not carried out as agreed. There must be an unsuccessful attempt by the parties to get their minds into accord. If one does a thing deliberately and intentionally, he may not be heard to say that upon further reflection he may have acted otherwise, or that he entertained a different purpose which he refused or neglected to disclose. (Hn 5) Minds must be held by the law to have met in all open covenants openly arrived at. The law which parties invoke to aid them must also hold them to have intended to do that which they did under no compulsion or misleading. Goff v. Avent, 122 Miss. 86, 84 So. 134; Dunbar v. Aldrich, 79 Miss. 698, 31 So. 341. It is thus that solemn wills which may, and sometimes do, express clearly a purpose at variance with the testator's actual intention, are taken at their words.
Point is made by plea and argument that the action is barred by our ten-year statute of limitations, Code 1942, Section 710. Discussion of this interesting but perplexing question is pretermitted in view of what we have said herein.
The decree is reversed and the cross-bill dismissed, with decree here for appellant.
Reversed and decree here for appellant.