132 Ala. 204 | Ala. | 1902
— The bill in this case was filed by ap-pellee S. W. Smith, as executor of the last will and testament of W. C. Smith, deceased. The equity of the bill is predicated upon the allegation of mistake in the execution of a deed by the heirs at law of Eliza Pipkin, deceased, to the said W. C. Smith, deceased, and Jeannette Smith, his wife. This allegation is based upon information and belief which the complainant avers that he believes to be true. The relief sought is the reformation of said deed. The alleged mistake in the execution of said deed, conveying the land described in the bill, consisted in the insertion of the name of Jeannette Smith, who was the wife of said W. C. Smith, as grantee in said conveyance.
The law, as applicable to such cases, is well settled in the case of Hertzler, Jr. v. Stevens, 119 Ala. 333, where authorities have been collated and cited by Haralson, J. There, quoting from 2 Pomeroy Eq. Juris., section 859, it is said, with approval by this court: “Courts of equity do not grant the high remedy of reformation upon a probability, nor even upon a mere preponderance of the evidence, but only upon a certainty of error.” Furthermore, it was there said: “The burden in such cases is always on the complainant to show by evidence that is clear, exact, convincing and satisfactory that the written contract does not express the .true agreement between the parties;” citing Moore v. The State, 115 Ala. 582. And again: “If the proof is uncertain in any material respect, it will be held insufficient; and while the courts may feel a great wrong has been done,
Tlie allegation of mistake .as alleged in the bill is positively denied in the answer of the 'respondent. The 'testimony is in conflict; the evidence' on the part of the complainant tending to show that there was such mistake as alleged, while that on the part of the defendant positively denies that any mistake was made in the execution of said conveyance, but that the same was executed in accordance with the wishes of complainant’s testator. The proof shows that the deed in question was executed in pursuance of a. division of a tract of land which was jointly owned by AY. (1 Smith, complainant's testator, and one Eliza Pipkin, the ancestor of the Pipkin heirs, the said division having been effected between the said AY. C. Smith and the said Eliza Pipkin, during her lifetime, but at the time of said division no titles were executed by said joint owners to and from each other to the respective parts of said land allotted to each. The complainant’s witness, M. E. Pruett, testified that he was the draughtsman who drew up and prepared the deed in question, which ivas executed by the Pipkin heirs, and that he, without any authority or direction from AAr. O. Smith, inserted the name of Jeannette Smith as one of the grantees in said deed.' This deed ivas executed in 1891. This witness further states upon cross-examination that when he drew up said deed he gave the same to the said AY. 0. Smith in the afternoon to. look over and examine, and that he kept it until the next morning, when it was returned to witness, and it was subsequently signed up by the Pipkin heirs and delivered to said A'Y. 0. Smith. The testimony of other witnesses of complainant tend mainly ¡to show that AY. C. Smith claimed the land, controlled it, cultivated and rented it out, etc., and that they never heard of Mrs. Jeannette Smith claiming to have any interest in ¡the same. As opposed to this, the testimony of respondent’s witnesses unmistakably shmvs that Airs. Jeannette Smith claimed an undivided half interest, in the land, and a recognition by W. C. Smith of such claim. Taking in connection with this testi-
lit results from the foregoing conclusions that the decree of the chancellor must be reversed, and a decree will be here rendered dismissing complainant’s bill.