41 So. 378 | Miss. | 1906
delivered the opinion of the court.
The amended cross bill substantially makes this case in brief: That both parties, appellant and appellees, mutually intended by their deed and agreement that appellant should convey to appellees “all the oysters, oyster beds, and all other rights and privileges then held by said appellant in the waters of the said bay northward and eastward of the line indicated in said instrument, and forever conveyed, abandoned and released to the appellees all the property rights and privileges then held by them in that portion of said waters of said bay to the northward and eastward of said line indicated in said instrument,” and
“And it is expressly understood that the said Barataría Canning Company, by its acceptance of the grant evidenced by this instrument, shall for itself, its legal representatives, and its successors in interest, disclaim any right of claim to the exercise of any littoral and aquatic rights and privileges, appurtenant and attached to said land, or vested in the grantors as the owners of said land, to the northward and eastward of said line so established, no matter what the actual conformation of the shore line may or shall be, or become or be made, and the respective concessions and disclaimer here made by the parties hereto, each in favor of the other, shall be held and understood as reciprocal, and as furnishing mutual consideration each for the other.”
The contention of appellant that the former decision of this court is res adjudicata of the present contention presented by this amended answer and cross bill is a clear misconception of. the case made by said answer and cross bill. All that was done by this court, in its former opinion, was to declare the rights of the respective parties to the instrument according to the terms of the instrument as interpreted by the court. The object of appellees in the present pleading is in no way to assail the correctness of that decision; but, accepting it — accepting the interpretation put upon the terms of said agreement, especially the phrase “littoral and aquatic rights” — the said cross-bill avers that the instrument did not correctly set out, so interpreted, the contract actually made between the parties; that one contract was actually entered into between the parties' — the one insisted on by appellee — but that through the use of inapt words that contract so actually made was not contained in or expressed by said instrument, and prays simply the reformation of the instrument to make it speak the contract actually entered into by said parties,.or alternatively as stated. It was perfectly competent for the court below to permit the amendment of the answer and cross bill. City of Winona v. Minnesota, 29 Minn., 68 (11 N. W. Rep., 1128). This case falls clearly within the principles set out in the following authorities:- “If an agreement is what it was intended to be, equity would not interfere with it because the parties had mistaken its legal import and effect. If, on the other hand, after making an agreement, in the process of reducing it to a written form, the instrument, by means of a mistake of law, fails to express the contract
Clearly, here the averments of the cross-bill give a case in which there was not a mistake as to the legal import of the contract actually made, but the mistake was in using words which absolutely prevented the real contract from being made at all, or, as Pomeroy so clearly puts it, “the instrument as written fails to express the intention which the parties had in making the contract which it purports to contain,” and hence falls precisely within the class which equity will reform. No better statement of the principle has ever been made than that made by Judge Campbell, for this court, in Hall v. Lafayette, 69 Miss., 540 (13 South. Rep., 39), when he said: “If an agreement is just what the parties intended it should be, no matter what led to it, there can be no interference with it; but if in putting it into form it fails to express and stipulate for what the parties understood and intended it should, a case is made for a court of chancery.” But, besides this, this amended
We are clearly of the opinion that the former judgment of this court constitutes no bar to the granting of the relief sought by the cross-bill in this cause, and that the demurrer was, therefore, properly overruled. What the court held before is the law of the case within the limits of that holding, and the court held nothing absolutely as to whether, granting this instrument to mean what the court construed it to mean, it might not, so construed, wholly fail to convey and contain the contract actually entered into by the parties. The cross-bill does not question the previous holding in any respect. Recognizing its full extent and force, it merely avers, accepting its construction of the contract, that no such contract was ever actually made, and asks the court to reform the instrument so as to make it speak the very contract mutually intended to be made, and, in fact, actually made, by the parties. If the appellees shall maintain
The decree is affirmed, and the cause remanded, with leave to answer within thirty days from the filing of mandate in the court below.