119 So.2d 1 (Ala. 1960), 1 Div. 721, Gulf Refining Co. v. First Nat. Bank of Mobile

CourtSupreme Court of Alabama
Writing for the CourtGOODWYN, Justice.
Citation270 Ala. 351,119 So.2d 1
PartiesGULF REFINING COMPANY et al. v. FIRST NATIONAL BANK OF MOBILE et al., as executors of Will of Martha E. Sawyer, dec'd, et al.
Docket Number1 Div. 721.
Date17 March 1960

Page 1

119 So.2d 1 (Ala. 1960)

270 Ala. 351

GULF REFINING COMPANY et al.

v.

FIRST NATIONAL BANK OF MOBILE et al., as executors of Will of Martha E. Sawyer, dec'd, et al.

1 Div. 721.

Supreme Court of Alabama.

March 17, 1960

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[270 Ala. 352] McCorvey, Turner, Rogers, Johnstone & Adams, Mobile, and Chas. C. Richmond and Wm. R. Harris, Jackson, Miss., for appellant.

[270 Ala. 353] Vincent F. Kilborn and Pillans, Reams, Tappan, Wood & Roberts and Sidney S. Pfleger, Mobile, for appellees.

GOODWYN, Justice.

This is an appeal by the Gulf Refining Company, respondent and cross-complainant below, from a final decree of the circuit court of Mobile County, in equity, granting relief to Mrs. Martha Sawyer, complainant and cross-respondent below, and denying relief to Gulf. Both the original bill and cross-bill seek to reform the description of lands contained in a gas and oil lease given by Mrs. Sawyer to Gulf. The description contained in the lease is as follows:

'Land commencing 128 feet North of the Southwest corner of the Northwest Quarter (NW 1/4) of Northeast Quarter (NE 1/4), Section Eighteen (18), Township Two North (T2N), Range Two West (R2W) and runs North 173 feet, thence Northeast 1050 feet to the North line of the Northwest Quarter (NW 1/4) of Northeast Quarter (NE 1/4), Section Eighteen (18) at a point 550 feet East of the Northwest corner of said Northwest Quarter (NW 1/4) of Northeast Quarter (NE 1/4), thence runs East 770 feet to the Northeast corner of the Northwest Quarter (NW 1/4) of Northeast Quarter (NE 1/4), thence South 1320 feet to the Southeast corner of said quarter section, thence West 1070 feet, thence North 200 feet, thence West 250 feet to the point of beginning, containing 32 acres, more or less.

'Lot 27, Block 17, Dickie Subdivision, Town of Citronelle, more particularly described as lot bounded on the South by the South line of Section

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Twenty-six (26), bounded on the West by land owned by B. E. Newberry, on the North by land owned now or formerly by A. Hand, bounded by the public road on the East side; said lot being in the Southeast Quarter (SE 1/4) of Southeast Quarter (SE 1/4), Section Twenty-six (26), Township Two North (T2N), Range Three West (R3W); containing 5 acres, more or less. Containing in the aggregate 37 acres, more or less.'

Our concern is with the second paragraph of the description. There is no dispute with respect to the 32-acre tract contained[270 Ala. 354] in the first paragraph. Mrs. Sawyer contends that this tract was all that was intended to be included in the lease, and that none of her other lands should have been included.

Lot 27 is her home place. It contains about one-half acre and is located about a mile from a five-acre tract owned by her. Gulf contends it was intended that both Lot 27 and the five-acre tract be included in the lease. These two tracts are in different sections. As appears from the description, the words 'more particularly described, etc.', purportedly describes Lot 27. There is no question that such is not the case.

Gulf, by its cross-bill, seeks to reform the description by adding the words "also property' or words of similar import' just following the words 'Town of Citronelle' in the description. Gulf's contention is that in drafting the lease, Mrs. Lois Nichols, who obtained the lease for Gulf, inadvertently omitted the words 'also a lot' at the place indicated.

As stated in Gulf's brief, 'the entire controversy in this case revolves around the construction,--when taking into consideration the surrounding circumstances,--of the' second paragraph of the description.

It seems to us that the following from the trial court's decree clearly states the issue with respect to the primary question of reformation, viz.:

'For an orderly determination of the issues in this case the Court first turns to a determination of the matters set forth by Gulf Refining Company in its cross-bill. Generally speaking the burden of the cross-bill filed by Gulf Refining Company seeks reformation of the lease given it by Martha E. Sawyer August 4, 1953, on certain lands in Mobile County, Alabama, and seeks to declare the coverage of the lease and a quieting of the title of Gulf Refining Company to the mineral interests it claims under such oil and gas leases on certain lands in the town of Citronelle, Alabama.

* * *

* * *

'Decision of this cause rests squarely on the question of what lands were intended to be embraced in the lease from Martha E. Sawyer to Gulf Refining Company dated August 4, 1953 * * *. In short, what lands are in fact covered by the lease and what lands were in fact intended to be covered by the lease?

* * *

* * *

'No question is raised by any party that the lease was not intended to cover the lands described in the first descriptive paragraph above. These lands are located several miles North of Citronelle in Section Eighteen, Township Two North, Range Two West, Mobile County, Alabama.

'Complainant and Respondent Dan L. Reynolds, Inc., contend that it was never the intention between Complainant Martha E. Sawyer and Respondent Gulf Refining Company that this lease should cover any property within the Town of Citronelle. Lot Twenty-seven, Block Seventeen, Dickie Subdivision of the Town of Citronelle, is a residence located at the corner of State and Oak Streets in Citronelle and is the Complainant's home. This lot is located in Section Thirty-six, Township Two North, Range Three West. Complainant contends that this lot was never at any time intended to be included in the

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lease at all, nor were any of her lands in Section Twenty-six, Township Two North, Range Three West, ever intended to be leased at all. Complainant's lands in Section Twenty-six, Township Two North, Range Three West, are likewise lands located within the Town of Citronelle. Both lot Twenty-seven, Block Seventeen, Dickie Subdivision, and Complainant's lands in Section Twenty-six, Township Two North, Range Three West, are several miles Southwardly of the lands in Section Eighteen, Township Two North, Range Two West. None of Section Eighteen is anywhere near the town of Citronelle. As Complainant expresses it, the Section Twenty-six, Township Two North, Range Three West lands, and her home property, Lot Twenty-seven, Block Seventeen, Dickie Subdivision, are [270 Ala. 355] 'town property' (i. e. in the town of Citronelle) and her lands in Section Eighteen, Township Two North, Range Two West, are 'Mobile County lands' (i. e. lands out in the outlying county areas and not 'in town'.)

'Gulf Refining Company contends, contrary to Complainant and Respondent Dan L. Reynolds, Inc., that it was intended by the parties that the Gulf Refining Company lease should cover all of Complainant's lands in Mobile County (i. e. her 'town lands', and the lands in Section Eighteen, Township Two North, Range Three West, as well). Gulf Refining Company further says that, by a mistake of the scrivener, the second paragraph of the lease given it by Martha E. Sawyer omitted the words 'also a lot' following the description in the second paragraph of the lease, of Lot Twenty-seven, Block Seventeen, Dickie Subdivision, Town of Citronelle. In short Gulf Refining Company asserts that the second paragraph of the lease should be reformed to correct what it says was a scrivener's error. There was evidence that in all events, Gulf Refining Company noted the alleged error or omission in the legal description in the second paragraph within a week or so after the lease was signed by Mrs. Sawyer and delivered to it. No steps were shown to have been taken to correct the error, if one existed, or to call it to Mrs. Sawyer's attention at all. The actual purported coverage of the lease, by the evidence, was discovered by Complainant some two years after the lease was signed and when she sought to make a lease to Dan L. Reynolds, Inc. * * * Laches was pleaded.

'The actual taking of much oral evidence by the Court upon...

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