136 Ala. 443 | Ala. | 1902
This suit has for its main object the reformation of a deed executed by complainant and others who are made defendants, to the defendant Joseph Keith. All other relief sought is incidental to and dependent upon such reformation. The controversy is outlined by the following prominent facts: J oseph and Susan Keith, both now deceased, Avere parents of complainant and defendant Joseph Keith and- of William Keith ay ho died leaving as his heirs the other defendants herein. In 1868 lands of the estate of Joseph Keith consisting of a large tract in one body Avere by proceedings in the probate court partitioned between his Avid-oav and the three children to each of AAdiom was assigned a tract described in the commissioners’ report by metes and bounds. The northernmost tract which the commissioners numbered "4” and estimated at 717 acres Avas allotted to defendant Joseph Keith. Adjoining and south of number 4 lay a tract numbered 3, estimated at 410 acres aaíiícIi avrs set apart to Susan Keith, the Avid-oav. This tract numbered 3 lay partly in section 9 and Avas bisected by the section line forming the southern boundary of that section. To complainant Avas assigned
To warrant a court in decreeing reformation of a conveyance arising from contract, it is not enough that a mistake has been made, or that the minds of the parties never met upon the subject of the conveyance, but it must appear from definite allegations and corresponding proof that there was an agreement between the parties, and the terms of the real agreement must be shown with such certainty as that the proven averments will form a basis for the decree in substantial conformity with the theory of the bill. — Alexander v. Caldwell, 55 Ala. 517; Turner v. Kelly, 70 Ala. 85; Smith v. Allen, 102 Ala. 406; Guilmartin v. Urquhart, 82 Ala. 570; Tyson v. Chestnut, 100 Ala. 571; 18 Ency. Pl. & Pr. 805. In recognition of this principle the amended bill alleges the land intended to be conveyed was a strip containing 105 acres along the north side of the Susan Keith tract and described definitely by the map exhibited. In the evidence it is shown that that strip was located by Milner, a civil engineer, who for that purpose surveyed the dividing line between the tracts of Susan and Joseph Keith according to his understanding of data found in the partitioning commissioners’ report. His survey corresponds to another which he testifies was correct and which Avas made by an engineer who has since died.
This evidence is opposed by the testimony of Civil Engineer EdAvards introduced by defendant Joseph Keith Avho surveyed the partitioning line according to his understanding of data furnished by the commissioners’ report. This survey of EdAvards agrees Avith that of Mil-ner only in running the partition line straight and starting it from the same point at its east end. Its Avestern terminus is considerably south of the Avestern terminus of Milner’s line, thus diminishing tract No. 3, and expanding number 4 as compared AAdth Milner’s survey.
Wha.t other lands were intended to be included in that conveyance is unimportant, since under the rule referred to the court cannot by way of effecting the intention of parties establish a contract at variance with the one alleged to have been intended.
For like reasons no decree can properly be rendered for the further relinquishment by Joseph Keith of the Susan Keith lands,' for by complainant’s averments of the agreement in connection with the plat exhibited his relinquishment Avould have, to include all those lands excepting the strip located by Milner. According to the' conclusion we have stated, these averments have not been proved and the bill defines no other part of the Susan Keith tract in respect of which relief could be decreed consistently with what is alleged to have been intended by the parties.
We construe the conveyance by complainant and others to Joseph Keith as limited to lands in the Susan Keith tract and not as including in its description of lands conveyed any part of the ten acres in section 9 owned by complainant in severalty. Hence no relief is needed in respect of that ten acre tract.
Reversed and rendered.