51 So. 764 | Ala. | 1910
— Bill to reform a conveyance, in respect of subject-matter, so as to accord with the averred intention and agreement of the parties. To entitle a complainant to such relief it is incumbent on him lo show, by clear, exact, and convincing proof that the intention and agreement he would have substituted in the instrument, was that of both parties thereto. — Hertzler v. Stephens, 119 Ala. 333, 24 South. 521; Keith v. Woodruff, 136 Ala. 443, 34 South. 911, among others.
The deed in question, a copy of which is' exhibited with the bill, described-the subject of the conveyance as
Por the complainant, it was shown that he and his wife signed the deed and acknowledged it before one Pridgen, a notary public; that complainant stated to Sellers, of the Sellers-Bullard Company, that he wanted to understand the paper, and, in reply, that Sellers told him he (Sellers) was pressed for time, that the paper contained their agreement as now asserted by the complainant; that thereupon complainant signed the paper, Exhibit A; that complainant did not sell the SellersBullard Company any timber on the lands described, except that comprehended in the description quoted from the bill; and that no one was present, when the agreement of the sale was made, except complainant and Sellers. Mrs. White, complainant’s wife, corroborated her husband in the reason given by Sellers for not reading the deed on the occasion of its execution. She further testified that Sellers said “that it (deed) was the' contract they had agreed on. They did say that the lease was just as they had agreed on for the sale of the timber.” Mrs. White also testified that a day or two before the deed was signed her husband told her that the trade was as complainant now contends. This last matter was inadmissible. It was hearsay, not
On the other hand, it was shown for respondent that complainant took the paper to read before its execution and appeared to read it; that complainant made an inquiry eliciting from Sellers the statement that the purchase was of all merchantable timber on the lands; and that the true subject-matter of purchase and conveyance was that described in the conveyance as signed. Sellers so testified, and Pridgen also, though the latter, on. the cross, seems, in this record, to have modified his testimony in that regard.
The testimony of G-. W. White, tending the impeachment of Pridgen as to part of his testimony, was inadmissible for the want of a proper predicate for the inconsistent statements White stated Pridgen had made.
It is insisted in briefs that Sellers’ admission that he only purchased all the merchantable timber on the land, or all of the merchantable pine timber on the land, with complain antfs evidence, entitles complainant to the reformation sought. If it be conceded that Sellers’ admission was as is contended for appellant, it is obvious that the reformation prayed could not follow. The exactness required, in this character of procedure and relief, would forbid. The alleged true agreement set out in the bill not only declares that the subject-matter of the contract was the merchantable pine timber on the land, but also that such timber should be, in dimensions, 12 inches and up, 20 feet from the base. Taking Sellers’ admission in all strength against respondent and in favor of complainant, the particular dimensions
The whole evidence does not measure up to the settled standard of clearness, exactness, and convincingness requisite to authorize relief by reformation. Only two persons, viz., Sellers and complainant, were present •when the original agreement was made. They are iu immediate conflict as to what was the subject-matter of the sale and purchase. Mrs. White’s legal testimony does not expressly support complainant in the particular that the dimensions of the timber was as he contends. Pridgen, if anything, corroborates Sellers in his testimony. Eliminating entirely Pridgen’s testimony, the substance of the issue finds complainant and Sellers opposed in the evidence. It would be a departure from the rule of caution and certainty requisite in such cases, to conclude, in this state of conflict, that the true and common agreement and intent was as the bill asserts. A very similar controversy was reviewed here in Setters v. Grace, 150 Ala. 181, 43 South. 716, and reformation was denied.
The decree is affirmed.
Affirmed.