
    Pollock et al. v. Brayton et al.
    
      (Decided May 7, 1928.)
    
      Messrs. Mallon & Vordenberg, for plaintiffs.
    
      Mr. Deem F. Brayton, Messrs. Sawyer é Pichel, Mr. Wm. C. McLean, Mr. Frank R. Woodward, Mr. FL, J. Buntin, Mr. Clarence A. Schneiders, Mr. R. E. Simmonds, Jr., Messrs. Dempsey & Dempsey, Mr. W. W. Bellew, Mr. J. T. Harrison, Mr. Edward S. Aston, Messrs. Stephens, Lincoln & Stephens, and Mr. John J. Weiteel, for defendants.
   Mills, J.

This cause originated as an action in partition in the court of common pleas, and is here on appeal. The issue here involves only the question as to what interest in certain realty was purchased by James Mulligan from Mary Alice Pollock Gould in 1906.

Thomas B. Tullis died in 1849, leaving three children, Jeremiah, Mary Ann, and Martha Tullis. By will, he left certain real estate in Cincinnati to said children for their lifetime, and, after their death, to the bodily heirs of the named children or the survivor of them. Jeremiah Tullis and Mary Ann Tullis died many years ago, without bodily heirs.

Martha Tullis married William Pollock, and had five children, William Tullis Pollock, Emma Pollock, Martha Pollock Brayton, Mary Alice Pollock Gould, and Edward Charles Pollock. Emma Pollock died in 1860, at the age of 5 years.

In 1906, Mary Alice Pollock Gould and her husband, by deed of general warranty, in consideration of $800, conveyed to James Mulligan an interest in property at the corner of Central avenue and Longworth street, Cincinnati, Ohio. The deed contained the following provision:

“All her undivided right, title and interest, the same being an interest as devisee under the last will and testament of her grandfather, Thomas B. Tullis, deceased, late of Hamilton county, Ohio, * * * and also any and all interest which she may hereafter acquire or take under said will or by inheritance in and to the following described property.”

When Mary Alice Pollock Gould transferred this interest in the property, in 1906, Martha Pollock, her mother, had three children, William Tullis Pollock, Edward Charles Pollock and Mary Alice Pollock Gould, and one grandchild, Dean F. Brayton, living. Each of these four individuals had an expectancy during the continuance of the intermediate estate. The remainder was contingent, and the fee did not vest until the contingency ceased. Read v. Fogg, 60 Me., 479.

At that time, Mrs. Gould did not have any interest in the property other than an expectancy. If she and her brothers and nephew survived Martha Pollock, each would have a one-fourth interest. Her brother, Edward Charles Pollock, died in 1919, and her mother, Martha Pollock, died November 30, 1921.

The prayer here is for reformation of the deed from Mary Alice Pollock Gould to James Mulligan.

Two questions are presented in this case: •

(1) Did Mrs. Gould, in 1906, have an interest in the property at Central avenue and Longworth street, Cincinnati, that could be conveyed?

(2) Under the language of the deed, did she convey the prospective one-fourth that she had at that time, or what she acquired under the will of Thomas B. Tullis, or what she would acquire by inheritance at the death of her mother?

It is clear that, if Mrs. Gould had died prior to her mother, the deed which she executed in 1906 would not have conveyed any interest in this property. She survived her mother, and by the language of this deed she attempted to convey not only the interest that she had at the time of making the deed, but “also any and all interest which she might hereafter acquire or take under said will or by inheritance.”

The petition seeks to have the deed reformed, on the ground that there was a mutual mistake.

From the language of the deed, and from the record, it is disclosed that Mulligan was advised that in case Mrs. Gould predeceased her mother the deed would be worthless; and, so, for his protection, a policy of insurance was taken out on the life of Mrs. Gould, and was transferred to her after the death of her mother. Mrs. Gould will be presumed to have known at the time of the conveyance that she might have a fourth interest in the real estate. She will also be presumed to have known that, figuring on the uncertainty of life, she might have more than a one-fourth interest, or that she might predecease the life tenant, and therefore receive no interest whatever.

The language, “take under the will, or by inheritance,” means all the interest that the grantor might receive except by purchase.

We are of the opinion that at the time of making the deed Mrs.G-ould did not have any interest in the property that she could convey. But, for a consideration that was satisfactory, and that was solicited by her and her husband,, she undertook to convey the interest that she would have at the death of her mother. It seems to us that a person so situated who conveys premises as if in fee simple, by deed of general warranty, should be estopped to claim title to the premises against the grantee, his heirs, or assigns. Pollock v. Speidel, 27 Ohio St., 86; Shields v. Lakin, 21 Ohio St., 660.

The law is stated by text-writers as follows: With some exceptions, which we will not go into here, where a grantor has no title, or a defective title, or an estate less than that which he assumes to convey with warranty, and subsequently acquires the estate which he has purported to convey, and where he afterwards perfects his title, such after-acquired or perfected title will inure to the grantee or to his benefit by way of estoppel.

On the question of the reformation of the deed, the law is that a court of equity will not reform a deed unless it is established by clear and convincing evidence that there was a mutual mistake. Potter v. Potter, Exrx., 27 Ohio St., 84.

The deed was drawn by Mrs. Gould’s attorney. Its language will therefore be construed to be her language, and it should be construed more strongly against her than against the grantee.

At no place in the deed is the fourth interest mentioned. Her own testimony was that she at that time expected a fourth interest, and she further testified: “I thought that was all I would ever get.” No statemént of that - kind was made at the time of the execution of the deed. In fact she stated: “I left it entirely in Mr. Sutton’s hands. He did everything for me, and all that I had to do was go down and sign my name. He did all the business and negotiations and all.”

The language of the deed was: “and also any and all interest which she may hereafter acquire or take under said will or by inheritance.” In view of that language, her testimony some twenty years later, does not establish by clear and convincing evidence that there was a mutual mistake made at the. time the deed was executed.

It is argued that, where a mistake has intervened which thwarts the intention of both parties, a court of chancery will correct the mistake and give effect to the intention of the parties. This contention correctly states the law, but is not applicable to the facts in the case at bar.

We hold, therefore, that the equities are in favor of the defendant James Mulligan, and that he is entitled on distribution to one-third of the proceeds in question.

Decree accordingly.

Hamilton, P. J., and Cushing, J., concur.  