Jones v. Johnston

69 So. 427 | Ala. | 1915

Lead Opinion

MAYFIELD, J.—

(1) This appeal is from a decree sustaining a demurrer to a bill seeking the .reformation of a deed. The reformation sought was to change the description of the land, so as to make it describe the land sold. If the allegation of the bill be true, and on demurrer it must be so treated, the complainant was entitled to the relief prayed, and the chancellor erred in sustaining the demurrer thereto. The error into which the chancellor fell was in construing the allegation of the bill, to the effect that it sought to substitute for the tract of land sold another and different tract. The bill did not seek to do this; it only seeks to have the defendants convey the same tract of land which they sold. The bill in effect says: You sold me one tract of land, and by your fraud you conveyed me a different piece of land.

The prayer in effect- says • I want the court of equity to compel the defendant to convey to me the piece of land which he sold to me. He sold me one piece and deeded me a different piece.

. The chancellor treated the bill as averring that the deed conveyed the land sold, and that the bill sought to have the deed convey land not sold. The bill only sought to have the contract actually made enforced, and not to make a new or a different contract.

(2) The bill also alleges that this misdescription of the land sold was caused by the active and fraudulent act of the defendant. While this court has held that fraud alone does not confer equity jurisdiction, yet it has always held that, if equity has jurisdiction, it will relieve against fraud; and thus having jurisdiction to reform a deed, it will certainly reform it, where the need of reformation was superinduced by the fraud of the defendant. — Hand v. Cox, 164 Ala. 384, 51 South. 519. It follows that the decree of the chancellor must be reversed, and one here rendered overruling the demurrer.

Reversed and rendered.

Anderson, C. J., and McClellan, Somerville, and Gardner, JJ., concur.

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Dissenting Opinion

SAYRE, J.—

(dissenting). — On the averments of the bill, which the reporter will set out in substance, there is no doubt the complainant might have had an action for damages, as the chancellor held. Clearly, also, he might have rescinded the contract in toto and had compensation for the money paid and expended by him, with a lien. But it appears to me that by the decree here pronounced he will be allowed to impose upon the defendant a contract which the defendant did not intend to execute, and which he himself knew the defendant did not intend to execute. Without elaborating my reasons for this view of the case — they seem rather obvious to me — -I state my opinion that the chancellor’s decree was correct.

In this opinion Judge Thomas concurs.