108 Ala. 264 | Ala. | 1895
It is not denied that the instrument, whose reformation is sought by the bill, misdescribes the lands, which the appellees agreed to convey to the appellant, and for the purpose of conveying which, they went to his place of business, in the town of Geneva. It is admitted that the appellee, R. T. Smith, did not own any land in section 25, but that he was possessed of the corresponding subdivisions in section 28, constituting his homestead, and upon which the appellant had a first mortgage. In his testimony, Smith says, that he had previously mortgaged these lands to appellant,, and that he intended to deed the same lands lying in section 28, instead of section 25. There is, therefore, no room for doubt or controversy, that a mistake was made by the scrivener, in respect of the description of the lands, and that, in its present form, the instrument does not express the true intention and meaning of the parties. The jurisdiction of a court of equity, to correct such mistakes, when admitted or established by the necessary measure of proof, is too well settled and has been too often successfully invoked in this State, to require a citation of the cases, to be found in our reports, upon this subject. And at this time, it is no longer open to debate, that reformation may be had, of a conveyance designed to pass the husband’s exempt homestead, but which by mistake, fails to correctly describe it, provided the deed or mortgage is executed and acknowledged by him and wife, in conformity with the statute governing such cases. — Gardner v. Moore, 75 Ala. 394 ; Parker v. Parker, 88 Ala. 362. The opinion in the case first cited, states, arguendo, that the reformation in description, which was there prayed for in the bill, did not seek to locate the land in a different section, but to correct an admitted imperfection in. the designation of it, by erroneous land numbers, belonging to the same section. The fact thus noted was not made the basis of the decision which lacks much of being an adjudication
The decree appealed from cannot be sustained, upon the ground which influenced its rendition. The same considerations require us to decide adversely to the ap-pellees, upon the second plea, which averred the wife was not examined separate and apart from the husband, as the justice of the peace certified. We must not, however, be understood as conceding that the appellees made a case, authorizing them to impeach, by parol evidence the certificate of the officer, made in due form, after the parties were brought within his jurisdiction, for the purpose of making acknowledgment of the conveyance. Our rulings on this subject are familiar, and we need not now refer to them. The third plea is very meagre in its statements. It does no more than aver that, before the filing of the bill, the appellant conveyed by deed to a third party, not named, the lands described in Smith’s deed ; that is, the lands lying in section 25, and from this single fact, which the appellant admitted, it is argued by counsel for appellees, that the appellant is not a proper party complainant. It has been ruled, and we think correctly, that when a mistake occurs in a series of conveyances, the last vendee may have the deeds corrected. Blackburn v. Randolph, 33 Ark. 119 ; May v. Adams, 58 Vt. 74 ; Greely v. DeCottes, 24 Fla. 475; 5 So. Rep. 239; Parker v. Starr, 21 Neb. 680. From this principle, it is argued that the right of the grantee, in the conveyance wherein a mistake occurs, to have it reformed, is destroyed by his deed to another, containing the same mistake. Although the second conveyance would establish a privity between the grantee therein, and the grantor in the first conveyance, entitling the former to seek a correction of the first conveyance, we are by no means prepared to admit, that this would, of necessity, disable the first grantee from procuring the correction to be made, upon a bill filed by him. The second grantee might not desire to do more than have a correction of the immediate conveyance to himself, leaving to the first vendee the task of protecting himself by procuring a correction of the first conveyance. We have found no case holding the
The fourth plea alleges, in substance, that the deed
It is not claimed that the agreement, by which the conveyance was to operate as a mortgage, was intended to be asserted in the instrument; on the contrary, it is evident the parties intended to execute a conveyance, absolute in terms, no matter what its operation was expected to be. If the alleged agreement was, in fact, made, remedies exist which are adequate to effectuate the rights of the defendant, growing out of the same. The existence of that agreement should not defeat a reformation of the deed, since a decree of reformation, would not prevent the defendants from availing themselves of all proper remedies, to secure whatever rights they have, by virtue of the oral agreement. In this proceeding, no question upon the operation and effect of the conveyance arises. As we said in a similar case, “The office of the remedy invoked in this case, is not to establish and effectuate rights — not to have the effect of the deed adjudged — but rather to declare the status, which the parties intended to create, and upon which, such rights as they would have acquired, under a correct instrument, may be asserted and defended. The real question is, not what the instrument was intended to mean, or how it was intended to operate, but what it was intended to be.” Parker v. Parker, 88 Ala. 362; Ala. Midland Railway Co. v. Brown, 98 Ala. 647. Nor was the expression of the opiuion by appellant that the deed would defeat the second mortgage, the doing of such inequity as will prevent his haviug equity. The fact is the second mortgage cannot be impaired by any agreement between the mortgagor and first mortgagee. The making of the deed in question was the doing of a legal act, entirely valid between the parties,'and having no capacity to woik wrong or injury to the second mortgagee, whose
The decree of the chancellor must be reversed and a decree here rendered awarding the complainants appropriate relief.
Reversed and rendered.