164 So. 741 | Ala. | 1935
The action of the trial court in reforming the mortgage because of a mutual mistake *345 take in the description of the property inserted therein is assigned as error.
The rules of law that obtain are well established that mutual mistake must be pleaded and shown with great clearness and particularity; the burden of proof being upon the complaint "to make out his case by proof that is clear and convincing — that the intention and agreement he would have substituted in the instrument was that of both parties to such instrument." Parra v. Cooper et al.,
The instant pleading seeking reformation is averred with clearness and particularity. The proof thereof is within the requirements of the rule, and the intention and agreement of the parties was that the property sought to be substituted by reformation of the mortgage was that of both parties to such instrument; and that by a mistake of the scrivener the wrong property was incorporated in the mortgage as prepared and executed in the first instance by the mortgagor to the complainant-mortgagee.
We think the evidence amply justifies the conclusion reached in the circuit court and incorporated in the decree of reformation made and entered; that is, upon the evidence we are persuaded the result reached by the circuit court in equity is sustained and the burden of proof duly met by complainant-appellee.
The decree of the circuit court is, therefore, affirmed.
Affirmed.
BOULDIN, BROWN, and KNIGHT, JJ., concur.