8 Div. 307. | Ala. | Apr 7, 1921
Bill by appellees for reformation of a deed of conveyance of land. Demurrer to the bill was overruled, and defendants have appealed. Briefly we state our consideration of the objections urged against the bill.
In substance the bill as last amended shows that defendant Frances Jones, intending to compensate complainant Crutcher for services rendered, pointed out to him certain 15 acres of land which she would convey to him on that consideration, and that afterwards, by mistake of the draftsman, she executed and delivered to complainant a deed of certain *446 15 acres not coterminous in all respects, the effect in part of the difference being to leave the "hay barn" without the premises actually conveyed. That appellant intended to convey the "hay barn" is clear enough in a way, for the instrument of conveyance recites that —
"The said Frances Jones hereby expressly reserves the use and occupancy of a certain barn situated on the above-described premises, known as the 'hay barn,' during the term of her natural life." The bill points out quite definitely the whole effect of the mistake averred. So far as concerns the interest of complainant Crutcher, we think the bill, of which we have stated the merest outline, sufficiently shows that the instrument in question was supported by a valuable consideration, and that at the time of its execution it was affected by a misunderstanding, reciprocal and common to both the contracting parties. Camper v. Rice,
But complainant, appellee, Sallie L. Stewart, was first brought into the bill upon its last amendment, and it is made to appear that she is interested as Crutcher's mortgagee, the subject of her mortgage being described in terms identical with those employed in the conveyance from Mrs. Jones to Crutcher. It is true of course that, if there was a reformable mistake in the deed to Crutcher, and the parties to the mortgage mutually intended a pledge of the identical land which, it is averred, the deed was intended to convey, Mrs. Stewart would be entitled to a decree reforming the deed. But from her acceptance of the mortgage in its terms it must be presumed, in the absence of sufficient averment to the contrary, that the mortgage conveys all the land for the security of which she bargained. There is no averment that she intended or expected to receive a pledge of anything more, and, such being the case, she is not entitled to maintain a bill for reformation against the defendant Crutcher, and, clearly enough, she could maintain no bill against her cocomplainant. And yet one prayer of the bill is that the court will reform the mortgage from Crutcher to her. With the case presented by the bill the act of April 5, 1911 (Acts, p. 199), has nothing to do. Woodlawn Realty Co. v. Hawkins,
The demurrer to the bill as last amended and appellant's brief upon this appeal take the point that the bill, as a bill by Mrs. Stewart against complainant Crutcher, cannot be maintained for the reason we have indicated, and for that reason the demurrer should have been sustained.
Reversed and remanded.
ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.