
    No. 59
    MATUSOFF v. MUCKENHEITER
    Ohio Appeals, 2nd Dist., Montgomery Co.
    No. 730.
    Decided Dec. 16, 1926
    807. MUTUAL MISTAKE — It is incumbent upon plaintiff to prove by clear and convincing evidence that a mutual mistake existed in regards to the description of certain lots contained in deeds and records of the Probate Court.
    Attorneys — I. L. Jacobson for Matusoff; Frank W. Krehbiel for Muckenheiter; all of-Dayton.
   BY THE COURT.

This action was brought in the Montgomery Common Pleas to reform and correct certain deeds of conveyance as well as the records of the Probate Court upon which the deeds were based. The property consisting of two adjoining half lots, was owned by one Schulze, who, for his convenience, erected a fence so as to give his own residence eight or ten extra feet. This fence was in existence at the time Schulze’s administrator sold the property. There was no reference in the deeds to the fence and the property was described as one-half of the platted lots referred to in the plattings.

It was contended by Morris Matusoff that there was a mutual mistake of all the parties to said deeds, that the intention was to convey to him (Matusoff) the south half of lot 5271 up to the fence and the conveyance to Eva Muckenheiter was intended to be only to the portion of the north half of lot 5272. The Court of Appeals held:

1. It was upon plaintiff to prove by clear and convincing evidence that said mutual mistake existed.

2. It is not sufficient to prove merely that there was a mistake on the part of the plaintiff; but it must also be proven that there was a mistake upon part of the defendant.

3. Mrs. Muckenheiter denies that there was any intention on her part to purchase only to the fence; and testified that she had an ab-stractor look up the title and that he had advised her that she was purchasing the half lot so included in her deed, and that upon faith of the deed and the record she purchased said property.

4. The plaintiff has not made out a sufficient case under the law, and he must therefore fail in obtaining an order for the correction of said deeds.

Decree for defendant.

(Allread, Ferneding & Kinkle, JJ., concur.)  