Weiss v. Turney (173 F.2d 617, 1949)

GARDNER, Chief Judge.

This was air action brought by appellants for the reformation of a deed executed by them and delivered to the appellee Civil Turney. Appellants are husband and wife but the property involved was the property of Mr. Weiss, and Mrs. Weiss joined in the execution of the deed only to release her dower interests. The parties will be referred to as they were designated in the trial court. The ground upon which reformation was sought was mutual mistake.

At the times in controversy in this action Weiss was the owner of three lumber yards on one of which was located a planing mill and a stave mill. He also owned a large quantity of lumber and some 12,000 or 15,000 acres of timber land located in and around Heber Springs, Arkansas. In January, 1947, he contracted to sell to the defendant the planing mill and the yard on which it was located for $24,000, and as Turney was not able to pay the entire purchase price a deed and Turney’s notes representing the balance of the purchase price were placed in escrow to be there held until the purchase price should be paid. While the deed and the notes were still in escrow a dispute arose between Weiss and Turney as to the payments which had been made by Turney. Turney contended that he had paid the full purchase price and that Weiss owed him about $31,000 for lumber delivered by Turney to ICenark Lumber Company, a corporation in which Weiss owned half the stock. Weiss, on the other hand, contended that Turney owed him about $17,000. Turney filed a suit for specific performance of his contract of purchase and while this suit was still pending and undetermined the parties met at the office of Weiss’ attorney in an effort to settle their differences. After two or three days of futile negotiations between Turney on one side and Weiss and his attorney on the other, Turney employed an attorney who joined in the negotiations for some tw:o or three days until a compromise agreement was finally reached and the deed in controversy was executed in settlement of the matters in difference between the parties.

While the instrument is referred to as a warranty deed, it is in fact more than a ■deed of conveyance. It conveys six separately described properties, the first description being as follows: :