Harold Bros. & Scott v. Weaver

72 Ala. 373 | Ala. | 1882

BRICKELL, O. J.

The argument in support of the demurrer is, that as more than twenty years elapsed after the making of the mistake in describing the lands, during ivhich period the complainant and those under whom he claimed had uninterrupted possession of the lands it was intended to convey, the lapse of time is a bar to the reformation of the conveyance. There can be no doubt, that the statute of limitations, or the lapse of time, will operate in a court of equity to bar relief against mistake, as it will operate to bar relief against fraud; and’ that the period of the bar will be computed from the discovery of the mistake, or the time at which by the exercise of reasonable diligence it could have been discovered. — 2 Story Eq. § 1521 n. And it may be admitted, that the long delay in applying for relief is not accounted for in the present case. It may be inferred from the bill, that the complainant was ignorant of, and did not discover the erroneous description of the lands, until a short time before the bill was filed. Mere general or inferential averments can not relieve from the consequences of long and unreasonable delay in the assertion of rights.—James v. James, 55 Ala. 520. But we are not of opinion, that in the present case the statute of limitations, or the lapse of time, can be invoked as a bar to a correction of the mistake. There has not been, until a very recent period, the assertion of any right hostile to that of the complainant: he has had open, peaceable, and uninterrupted possession of the lands it was intended to convey, until he is clothed with a title upon which he can maintain or defend all legal remedies for the recovery of the lands. There is, however, an error in the muniment of his title, which may embarrass the alienation of the lands; which is calculated to engender a sense of insecurity, and may be a source of unfounded, vexatious litigation. The court can properly intervene for the correction of the mistake, under such circumstances, when it would refuse to intervene, if there had been the assertion of a hostile right, and an adverse possession for a much less period than twenty years.

It is true, as insisted in the argument of appellant’s counsel, that equity will not interpose to correct an innocent mistake, capable of full correction by the voluntary act of the parties, unless it is shown by allegation and proof, that, upon application to the proper party, a correction was refused, or a reasonable excuse for the omission to make the application is shown. If the grantor in the conveyance were not dead, and the heir at law, to whom the legal title to the lauds has descended, was not an infant, this ground of demurrer to the bill would be well taken. But these facts being true, there is no person in being capable of correcting the mistake, and none to whom the application for that purpose could be made properly.—Williams v. Mitchell, 30 Ala. 299.

We do not find that the chancellor erred in overruling the demurrer, and the decree must be affirmed.