131 Ala. 470 | Ala. | 1901
The whole difficulty with the complainant’s title to the land in question, and to his enjoyment of the possession of the same is, as appears, in the alleged misdescription of the same in the mortgage under .which it was sold by the decree of foreclosure, at the instance of the cross-complainants, in the chancery court
No principle is better settled here, and generally, than that courts of equity have jurisdiction to reform a written instrument, on account of a mistake of fact occurring in it, so. as to conform it to the intention of the parties to it, even though the defect is such that it may be aided by parol, and thereby made available as a defense to an action at law; and so long as the party holding under the written instrument is dependent on parol testimony, and is exposed to the hazard of losing the benefit of his written muniment by loss of such parol evidence, he is entitled to the aid of a court of equity to perfect the written muniment. — Greene v. Dickson, 119 Ala. 346. Judge Story says: “One of the most common classes of cases, in which relief is sought in equity, on account, of a mistake of facts, is that of written instruments, either executory or executed. Sometimes by mistake, the written instrument contains less than the parties intended; sometimes it contains more; and sometimes it simply varies from their intent by expressing something different in substance from the truth of that intent. In all such cases if the mistake is clearly made out by proof entirely satisfactory, equity will reform the contract, so as to make it conformable to the precise intent of the parties.” — 1 Story Eq. Jur., § 162; 2 Pom. Eq. Jur., §§ 852, 859.
Another principle equally as well settled and understood is, that after a decree has» been entered and the term of the court at which it was entered has expired, it 'cannot be vacated or amended on motion or petition for the purpose of correcting an alleged error which in
In Owen v. Bankhead, 82 Ala. 399, it wais said: “A final decre had been rendered in this ease, and under it the register had made sale of the lands the bill sought to. have sold. At a subsequent term, application was made for leave to amend the bill. The application came too late. The final .decree, and adjournment of the court, placed the subject of the decree beyond the power of the chancellor to alter anything- therein decided. — Ex parte Cresswell, 60 Ala. 378; Cochran v. Miller, 74 Ala. 60; Marshal v. McPhillips, 79 Ala. 145.” — McQueen v. Whetstone, 127 Ala. 417; Dial v. Gambrell, 126 Ala. 151.
In this, case, there was no ‘action to correct the alleged mistake in the mortgage before it was foreclosed, nor was -there any correction of it, sought in the cross-bill for its foreclosure.
The Indiana court has had the question presented be-fare it -more- than once. In Rogers v. Abbott, 37 Ind. 138, the court- said: “Such mistakes in the description of real estate, between private persons, in bonds, mortgages, deeds, etc., are freely corrected by the courts. But- when the sale is judicial, difficulties arise which at once cause a court to hesitate, seek for reasons, and search for precedents. * * * If the mistake was in the deed only, perhaps it might be corrected in this way. * * But if we should correct the deed, and attempt to vest in the plaintiff the title to the tract of land which he claims, we -should give him land which was not ordered by the court to be sold, nor advertised by the sheriff, nor sold by him, nor purchased by the plaintiff. The difficulty seems to us insurmountable, especially as to a correction of the description of sale given- by the sheriff.” — Schwickerath v. Cooksey 53 Mo. 75.
In Miller v. Kolb, 47 Ind. 220, it was held that when a mortgage misdescribes the property intended to be mortgaged, the mistake may be corrected by a proper proceeding before foreclosure, or in an action to foreclose; but when the mistake has been carried into a decree of foreclosure, the execution, advertisement, and
When there is a decree of foreclosure, the mortgage I becomes merged in it, and ceases to exist as a legal security for the debt, isio long as the decree of foreclosure! stands unannulled. It follow®, that a decree of foreclosure, if valid, is a complete extinction of the mortgage ; and if invalid, it must be so for all purposes. — Duval v. McLoskey, 1 Ala. 728.
We have been referred by complainant’s counsel to the case of Greeley v. DeCottes, 24 Fla. 475, and to Greene v. Dickson, 119 Ala. 346, as 'Sustaining his bill. The Florida case, it must be admitted, does, but the conclusion seems, from 'the authorities cited, to be based on the admitted jirtrisdiction of the chancery court to correct mistakes in written instruments. We must decline to foliow it. In the case in 119 Ala., it seems from the opinion that a deed of trust was foreclosed, as we take it, under the po wer1 in the deed, and the complainant purchased the land and received a deed from the trustee. The county and State where the lands described lay, were not stated in the deed of trust, and- another misdescription was averred. No judicial decree for the sale, appears to have been made, and the power of the court to correct'a decree, or a mortgage which had been judidaily foreclosed waisi not considered. The gravamen of the decision is, that “courts of equity have jurisdiction to reform written instruments even though the defect is such that it may be aided by parol and thereby make it available as a defense to a suit at law.”
In the case in hand, if the relief prayed were granted, it would result in giving to complainant a title by decree, to land that was not described in. the bill to foreclose, not decreed to be sold, and not advertised and sold, nor conveyed 'by the register to him under the fore
It is unnecessary to consider the question of rents and of parties as raised and discussed.
The demurrer -should have been -sustained. A decree will he here rendered reversing the decree below and sustaining the demurrer. The cause is remanded.
Reversed and remanded.
