
    Frate et al. v. Rimenik et al.
    
      Real property — Reformation of deed — Clear and convincing proof of mutual mistake necessary, when — Supreme Court —Record examined to determine whether requisite degree of proof established — Easements and servitudes in lands become permanent appurtenances, when — Dominant and servient owners may not interfere with use, when — Driveway between adjoining lots passes as way appurtenant, when — Statute of limitations — Four years from date of discovery of fraud.
    
    1. In order to maintain an action for reformation of a deed upon the ground of mutual mistake of parties thereto, the proof of such mutual mistake must be clear and convincing; a preponderance of the evidence only is not sufficient. This court, while not required generally to weigh the evidence, will examine the record to see whether the court below has acted upon the requisite degree of proof.
    2. Easements and servitudes created by a common owner of lands, which are plainly visible and from the character of Which it may be fairly presumed that he intended their preservation as necessary to the proper, convenient, and reasonable enjoyment of the property, become, when the lands are divided and pass into other hands, permanent appurtenances thereto, and neither the owner of the dominant or of the servient portions of the land has power to adversely interfere with their proper use and enjoyment.
    3. Where one, owning adjoining lots, maintains a driveway approximately 10 feet in width upon one of the lots for the benefit and use of both tracts and afterward sells a part of the lot on which said driveway is located, making the center line of such driveway the dividing line between the part sold and that retained, both purchaser and owner using such driveway in common as the owner had theretofore done, and subsequently such owner sells all of his remaining land to a third party, and both of such purchasers continue to use such driveway in common as a means of ingress and egress to and from the highway and the property of each, such driveway passes under the deed of each purchaser from the common grantor as a way appurtenant to the property so conveyed, and neither purchaser can interfere with the other in the use thereof.
    4. An action based upon fraud, if begun within four years from the date of the discovery of the fraud, is not barred by the statute of limitations.
    (No. 19344
    Decided May 11, 1926.)
    Error to the Court of Appeals of Cuyahoga county.
    This is a proceeding in error to reverse the judgment of the Court of Appeals of Cuyahoga county. The matter originated in the common pleas court of that county by Fanny Rimenik and Karl Rimenik, wife and husband, and Jennie Mendluwitz and Nathan Mendluwitz, wife and husband, filing a petition against Maria Frate and Antonio Frate, wife and husband, and Biagio Fazio, seeking equitable relief in regard to certain property rights.
    The plaintiffs obtaining a decree, the matter was appealed to the Court of Appeals by the defendants, and Giovannine Fazio, wife of Biagio Fazio, having been made party defendant, an amended petition was filed therein, the prayer of which is as follows:
    “That this court reform the deed given by Maria and Antonio Frate to plaintiffs herein to read 45 feet of frontage instead of 40 feet frontage, and also that this court cancel the deed last given on February 13, 1922, to defendants, Biagio Fazio and Giovannine Fazio by Maria and Antonio Frate, and that this court temporarily restrain Biagio Fazio and Giovannine Fazio from tearing down said fence and from erecting another fence, or depriving plaintiffs herein of the use of the driveway or in any way interfering with plaintiffs’ rights and privileges thereto resolving this temporary injunction into a permanent injunction upon proper hearing of this cause. Plaintiffs ask such other and further relief as is just and equitable.” !
    The facts incident to the controversy may be briefly stated as follows: Maria Frate and Antonio Frate, prior to 1917, were the owners of 80 feet of land on the east side of East 114th street in the city of Cleveland, and 150 feet in depth. This land consisted of two lots, numbers 58 and 59, each 40 feet in width; lot 58 being the northerly lot, and lot 59 being the southerly one. They received two separate certificates of title when they bought the land, one for each lot, describing the lots as 40 feet wide and 150 feet deep. The Frates first built a single dwelling house on lot 58, and lived in it. Later they built a four-family house, 32 feet wide, on the southerly lot, getting a building permit on December 14, 1916, and completing it April 6, 1917. The four-family house is 25 feet back from the street line, 5 feet and 4 inches from the southerly line of lot 59, leaving approximately 2 feet of lot 59 north of the four-family house. The 10 or 11 feet between the two buildings the Frates cemented and used as a driveway, in common, between the single dwelling in which they lived and the four-family house which they rented. The Prates also built a fence around the rear end of their ’80 feet of land, back of the two houses, and back of the four-family house they inclosed a garden space for their personal use, 45 feet wide, and cut off the northwest corner of that garden with a diagonal fence, in which they put a gate, thus giving access from the driveway.
    The Frates continued to live in the single house-until November, 1917, when they sold it to Biagio Fazio and Giovannine Fazio, by deed, conveying to them the northerly 35 feet of lot 58, with no mention of the use of the driveway, although the deed contained the usual language, “with the appurtenances thereof.”
    The evidence shows that the space between the two houses was cemented and used as a driveway in common to get to the rear of both lots, and seems to have been the only means whereby coal could be taken into the bins of the four-family house, and into the single house, as well. This driveway is Fazio’s only way to drive into his lot and reach his garage.
    Afterward the Frates decided to sell their four-family house and listed it with a real estate agent by the name of Tael. This real estate agent, having certificate of title for lot 59, took Rimenik and Mendluwitz upon the premises and pointed out the location of the fence and told them that the fence was the line of the property and that the land between the two houses would be used as a joint driveway.
    The record also shows that Mendluwitz testified that Frate told him, “The fence belongs to you. This driveway we got there belongs to you. You got 5 feet use on the driveway; 5 feet belongs to the single house;” and that the driveway was one in common for the use of the two houses.
    The deal was closed at Ulmer’s mortgage office, but the deed was drawn in Tael’s office, from the abstract and certificate which Frate gave him.
    It seems none of the principals to this transaction could either read or speak English very satisfactorily, but relied upon attorneys and agents; Frate and Fazio speaking one language, and Rimenik and Mendluwitz another.
    The purchasers of the four family property took possession of it and the 45 feet of land within the fence behind it in 1920, and used the driveway in common'with the Fazios, who were living in the single house on the 35-foot lot which they, owned, just as it had been used before by the Fazios and the Frates. Subsequently, the Frates conveyed to Fazio by deed, not dated, but acknowledged December 6, 1920, the 5-foot strip between the north line of lot 59 and the 35-foot line in lot 58; the deed reciting that the premises conveyed were the northerly 40 feet of lot 58. Fazio already having 35 feet of the 40-foot width of said lot, this conveyance would therefore only pertain to the 5 feet which lay between the north line of lot 59 and the part theretofore conveyed to Fazio. This deed was entered for record February, 1922.
    Both parties appear to have continued their use of the strip in question until after February 22, 1922, when Fazio began to make some claim to the exclusive ownership of the driveway and that the plaintiffs were not entitled to use the same; where-, upon this suit was instituted, asking for a reformation of the deed by Frate to Rimenik and Mendluwitz, upon the ground of mutual mistake. The. matter was tried in the court of common pleas, resulting in a decree in favor of Rimenik and Mendluwitz. Appeal was prosecuted to the Court of Appeals and that court heard it upon transcript of testimony taken before the common pleas court as to Rimenik and Mendluwitz, but the testimony for Frate and Fazio was taken de novo; the court referring the taking of the testimony to a master commissioner. Upon consideration, the Court of Appeals reached the conclusion that Rimenik and Mendluwitz were entitled to the relief prayed for, and that court ordered, adjudged, and decreed that the deed from the Frates to Rimenik and Mendluwitz be corrected and reformed, so as to describe and convey to the grantees the southerly 5 feet of said lot No. 58, and that the entry of the Court of Appeals should operate as a correction and reformation as fully and completely as though the deed had contained- said corrected description. That court further ordered, adjudged, and decreed that the deed to the Fazios, from the defendants Maria Frate and Antonio Frate, dated December 6, 1920, for the 5-foot strip, should be held to be null and void and of no effect whatever, and cancelled from the record; and the court further ordered, adjudged, and decreed that the driveway situated between the respective properties should be used jointly by the plaintiffs and defendants; the journal entry of the Court of Appeals setting out in detail a description of the property subject to be used in common by the plaintiffs and defendants, their heirs and assigns, as a joint driveway appurtenant to the two parcels of land above described.
    An injunction theretofore granted was made permanent, and judgment was rendered against the defendants for the costs. Error is now prosecuted to this court to reverse this judgment.
    
      Messrs. Scott & Bissell, and Messrs. Nicola & Born, for plaintiffs in error.
    
      Messrs. Cohen & Kumin, Mr. Herman Spielberg, and Messrs. Payer, Winch, Minshall & Karch, for defendants in error.
   Dat, J.

This controversy involves four paramount questions, to-wit: (1) Was there clear and convincing proof of a mutual mistake between the parties to the deed from the Frates to Rimenik and Mendluwitz? (2) Was the deed from the Frates to the Fazios tantamount to a conveyance of that which the Frates had theretofore conveyed, and was such transaction so permeated with fraud, in contemplation of law, as to justify its - being held void? (3) Had the statute of limitations run in favor of G-iovannine Fazio at the time she was made party to this action? (4) Was there error in the Court of'Appeals decreeing the joint driveway?

It is well settled in this state that, to justify relief in an action for the reformation of a deed on the grounds of mutual mistake of parties, the evidence must be clear and convincing; a mere preponderance is not sufficient, and no reformation can be granted that does not conform to the intention of both parties. Stewart v. Gordon, 60 Ohio St., 170, 53 N. E., 797.

It is equally well settled that this court will not generally consider the mere weight of the evidence; but, where the law requires in a particular case a higher quality and quantity of evidence than is sufficient in ordinary cases to support the judgment by the preponderance of the proof, this court will consider whether the court applied the proper rule of proof and the evidence attains to that higher degree of probative value to constitute clear and convincing proof. Cole v. McClure, 88 Ohio St., 1, 102 N. E., 264; Ford v. Osborne, 45 Ohio St., 1, 12 N. E., 526; Potter v. Potter, Exrx., 27 Ohio St., 84.

We appreciate the difficulties encountered by the Court of Appeals and the court of common pleas in determining the issues herein, for the reason that the plaintiffs and defendants spoke different native languages, and when it became necessary to express themselves in the common English tongue the record indicates they were not entirely successful and were laboring under difficulties, both in understanding questions and in answering them; and it further appears that their ability to read and write the English language was limited. Most of their negotiations and transactions were carried on by third parties and agents, so that it is not surprising that some mistakes occurred.

We think as between the Prates and Rimenik and Mendluwitz the parties fully intended to convey the 5-foot strip; that the view of the premises, and the acceptance of the line of the fence and other landmarks, such as the cement driveway between the two houses, and the right to the joint use of the driveway, pointed out by the Frates’ agent, Tael, really determined the amount of land purchased and conveyed and the extent of the property rights. The deed afterward prepared by third parties, new agents of the respective parties, from memoranda submitted, did not truly express the contract of purchase.

As above indicated, there was among the parties little knowledge of the English language and a very limited ability to read and write the same. Of course, the testimony is highly conflicting and many contradictions occur in the record, especially in the testimony taken before the commissioner on the appeal in the Court of Appeals and the testimony of the same witnesses before the trial judge in the court of common pleas, a transcript of which testimony was used in the Court of Appeals.

The real question then becomes, Does this record indicate that a lesser degree of proof was applied by the Court of Appeals than the law requires?

We are not unmindful of the fact that the trial judge in the first instance, the court of common pleas, heard these same witnesses, observed their demeanor, and had the great advantage of personally listening to their testimony, and he reached the same conclusion as did the Court of Appeals. Thus, four judges have weighed this testimony and reached a common conclusion. May we say this conclusion was reached upon a preponderance of the evidence only? There are many circumstances disclosed by the record other than the mere spoken word of the witness that might aid in reaching a conclusion, such as the conduct of the parties themselves, and all of those facts and circumstances which aid in reaching the conclusion as to the truth between conflicting claims. Taking the entire record, and all that is disclosed thereby, we cannot say that the Court of Appeals reached its conclusion upon the preponderance of the evidence only.

The rule declared in Clayton v. Freet, 10 Ohio St., 544, is applicable here. In the opinion, at page 545, it is said:

“As to the character of evidence required to show the mistake, it is undoubtedly the rule that it must be clear and convincing. How far evidence should be satisfactory to the mind of a court called upon to decide is necessarily a question of degree, and must depend, to some extent, upon the character of the judicial minds of the judges sitting in the case. * * * The question in this, as in other cases, is not how we would decide the case upon the evidence, but whether there be error in the decision of the court below. We feel some doubt in this case whether, as the court of original jurisdiction, we should have held that the evidence was as clear and convincing as the rule might require, but it is the conviction of our minds that the intention of the parties was as found by the district court, and we do not think a doubt as to the degree of clearness will entitle us to reverse their decision. ’ ’

Second, the sale of the 5-foot strip to the Fazios by the Frates, after what had taken place between the Frates and Rimenik and Mendluwitz, was tantamount to a sale by Frate of that which he did not own; and its conveyance, under the circumstances disclosed by this record, justified the conclusion reached by the Court of Appeals, to-wit, that the same was null and void and of no effect whatever.

Third, as to the question of the statute of limitations, raised on behalf of Giovannine Fazio: She was made party on December 31, 1924, and such rights as she has in the premises relate to her interest in the 5-foot strip. The evidence is conflicting as to just when the Fazios advised the defendants in error of their ownership of the strip of land in question. However, the deed for the same, received by the Fazios from the Frates, was recorded on February 14, 1922, and the record discloses that, after having received his deed from the recorder, Fazio made demand of the defendants in error to remove the fence from the 5-foot strip. If within the statutory period of four years from this date action was begun against Giovannine Fazio by the defendants in error, we are of opinion that she cannot complain upon the grounds of the statute of limitations.

The remaining question is the granting of a right of way for the occupants of both properties, as described in the journal entry of the Court of Appeals.

The cement road appears to have been made by Frate between the two houses and was used from the time the common owner, Frate, sold to the Fazios; and after the sale by Frate to Eimenik and Mendluwitz all parties continued to use the driveway as a partnership way, as it was called, for general purposes, such as putting coal into the respective properties, and by Fazio in getting back to his garage. The right to use this- easement was first seriously questioned by Fazio after he had recorded his deed for the 5-foot strip from Frate, in 1922, which incident led to the present controversy. The record shows, however, that prior to this date there was some talk between Fazio and Eimenik relative to the purchase of the Fazio property by Eimenik, this talk occurring a month or two after Eimenik and Mendluwitz had purchased, and some reference seems to have been made then by Fazio, as follows: “This ain’t a partnership drive.” But the conversation clearly related to the purchase of the Fazio property rather than to any denial of the right of the use of the easement. It is apparent that when Frate sold to Fazio the parties regarded and used the common driveway as though it were an incident to the property and an appurtenance thereto. Doubtless it was fully intended by the deed to pass as described in the deed, to-wit, “with the appurtenances thereof.”

That Frate proposed to preserve this right of way and means of ingress and egress to his property is evidenced further by his reservation of the 5-foot strip, which forms a part of the land over which the way in question exists. When Eimenik and Mendluwitz bought from Frate, the latter’s agent, Tael, pointed out the driveway as a partnership or common way for the use of both houses, and the record clearly shows it was so used by all parties as an incident to the enjoyment of their respective properties down to 1922, when the present controversy started.

The Court of Appeals took the view that under such circumstances the driveway was an appurtenanee to each of the properties, for the equal benefit of both parties, for Fazio and for Rimenik and Mendliiwitz, as well. The case falls within the principle announced in National Exchange Bank v. Cunningham, 46 Ohio St., 575, 22 N. E., 924, the judge saying in the opinion, at page 587 (22 N. E., 929):

“It is a well-settled doctrine of the law of easements that, where there are no restrictive words in the grant, the conveyance of the land will pass to the grantee all those apparent and continuous easements which have been used, and are at the time of the grant used by the owner of the entirety for the benefit of the parcel granted, and also all that appear to belong to it, as between it and the property which the vendor retains; and hence, when the owner of an entire estate makes one part of it visibly dependent for the means of access upon another, and creates a way for its benefit over the other, and then grants the dependent part, the other part becomes subservient thereto, and the way constitutes an easement appurtenant to the estate granted, and passes to the grantee, as accessorial to the beneficial use and enjoyment of the land.”

Also in Baker v. Rice, 56 Ohio St., 463, the court saying, at page 475, 47 N. E., 653, 655: “We think the law well settled in this state, whatever the decisions may be in some of the others, and they are far from being in harmony, that, where an estate is divided as was this one, each takes his part, subject to or benefited by such burdens as were openly and plainly attached to or imposed on it by the common owner in his use and enjoy-meat of the land at the time of the severance, and which on a severance would properly be termed easements or servitudes.”

It was held in Scott v. Moore, 98 Va., 668, 37 S. E., 342, 81 Am. St. Rep., 749: “If the owner of two adjacent lots sells both lots at the same time to different purchasers, each grant carries all the apparent and continuous easements which are necessary for the reasonable use of the property granted, and which have been or are at the time of the grant used by the grantor for the benefit of such property. * * * A purchaser is presumed to have contracted with reference to the condition of the property at the time of the purchase. If the condition of the premises shows plainly and unmistakably that an alley-way over the premises purchased has been used, was in use, and was intended for the use of the owner or occupant of an adjacent lot, the purchaser will take, subject to the rights of the adjacent owner or occupant.”

See, also, 9 Ruling Case Law, Section 60, p. 804; 8 Ruling Case Law, Section 125, p. 1070; 1 Thompson on Real Property, p. 379, Section 297.

Careful examination of this record convinces us that, while the evidence is highly conflicting, the conclusion of the Court of Appeals is the just one between these parties, and its judgment is therefore affirmed.

Judgment affirmed.

Marshall, C. J., Jones and Kinkade, JJ., concur.  