Ballentine v. Bradley
| Decision Date | 05 October 1939 |
| Docket Number | 8 Div. 985. |
| Citation | 191 So. 618,238 Ala. 446 |
| Parties | BALLENTINE v. BRADLEY ET AL. |
| Court | Alabama Supreme Court |
Rehearing Denied Nov. 2, 1939.
Appeal from Circuit Court, Lawrence County; W. W. Callahan, Judge.
Statutory action of ejectment by E. S. Ballentine against Tennie Lee Bradley and others. From an order or judgment transferring the cause to the equity docket of the circuit court plaintiff appeals and, in the alternative, applies for mandamus.
Writ denied.
A motion by a defendant, in an ejectment action, to have cause transferred to equity docket to secure benefit of an equitable defense based on fact that a deed allegedly failed to accord with intention of parties because of a mistake by draftsman in incorrectly describing land intended to be conveyed, was sufficiently sustained by proof to justify order of transfer.
The contract between the parties for sale of the lands is as follows:
North of Southern Railway and South of Town Creek and Sheffield Road. The consideration is to be $13,000.00 cash. The seller is to furnish abstract of title and convey same by merchantable warranty deed, this deed and abstract to be approved by Mr. E. S. Ballentine and his attorney; the seller to give the buyer full possession of said land by the first of January 1936; and also to give the buyer possession of any other parts of the land and all houses after the deed has been passed before the first of January that is not in use by the tenants now on the place. The purchaser does hereby place his check of $1,000.00 in escro pending the delivery of said title by seller to buyer, and buyer's acception of title. Should the title prove to be not merchantable, then the escro money shall be returned to the buyer.
E. W. Godbey, of Decatur, for appellant.
Wm. L. Chenault, of Russellville, and A. H. Carmichael, of Tuscumbia, for appellees.
Statutory action of ejectment instituted in 1936 by appellant, E. S. Ballentine, against appellee Tennie Lee Bradley. For convenience, these parties will be designated as plaintiff and defendant, respectively. Recovery was sought of all that part of section 19, township 4, range 8, Lawrence County, Alabama, which lies in the north half of said section, and north of "Buck Bridge Road."
In March 1938, defendant presented her motion for a transfer of the cause to the equity side of the docket that she might obtain the benefit of an equitable defense to the action.
Plaintiff in ejectment relied upon a deed executed by defendant Bradley, and the equitable defense related to the matter of reformation of this deed as to the description of the land purported to be conveyed.
Following the rule of our decisions, which requires that a motion of this character shall state the equitable right or defense asserted with the same precision and certainty as is required to state such right in a bill of equity, the original motion as first amended was here held defective as inconsistent and repugnant, and the order of transfer was by writ of mandamus here reviewed and held subject to the demurrer interposed thereto. Ballentine v. Bradley, 236 Ala. 326, 182 So. 399.
The motion was again amended and proof had by way of affidavits, both in support and in contradiction of its averments. And upon consideration thereof, the chancellor entered an order of transfer, which plaintiff seeks here to annul by his petition for the writ of mandamus. The theory upon which defendant seeks a transfer of the cause, as set up in her motion and accompanying affidavits, is as follows: On September 30, 1935, a contract was duly signed by plaintiff and defendant for the sale by defendant to plaintiff of "450 acres, more or less," situated in Lawrence County, and south of "Town Creek and Sheffield Road," which contract appears in the report of the case. The above mentioned road is also known as the "Buck Bridge Road," and will hereinafter be so designated. The day following the execution of this contract, the sale was consummated, the deed signed and delivered, and the purchase price of $13,000 paid.
Defendant insists that when this deed was executed she had a diagram which indicated there were only twenty acres of land in section 19 north of Buck Bridge Road, and such was her understanding at that time.
The deed conveys "all of section 19, township 4, range 8, which lies in the north half thereof, except twenty acres which is north of Buck Bridge Road." But it subsequently developed there were more than thirty acres in said section 19 north of the Buck Bridge Road. Such being the case, the exception is void, and title to the entire section 19 passed by the deed. Mardis v. Burns, 222 Ala. 31, 130 So. 381; Swindall v. Ford, 184 Ala. 137, 63 So. 651.
This, defendant says, is contrary to the intention of the parties; that plaintiff viewed the land and was told the land to be sold was south of Buck Bridge Road, and that the written contract so designated it; that she had two separate tracts, the one north of said road contained 200 acres, more or less, and the place south of the road 450 acres, more or less, and that it was this latter place which she agreed to sell and plaintiff agreed to buy at the sum of $13,000; that the mistake in the description arose from the use of government numbers by the draftsman, who was acting in that capacity for the plaintiff, in the supposition there were only 20 acres in section 19 north of the road.
Such a mistake is not, as suggested, a mistake of law. The law but made the mistake one of serious consequence. It was a mistake of fact nevertheless in assuming and believing there were only twenty acres in section 19 north of Buck Bridge Road.
Defendant further says the draftsman, who was an attorney, was in that capacity representing plaintiff, the purchaser, and is corroborated by two affidavits which were offered in evidence. This was denied by plaintiff, and by the affidavits he offered.
Much stress is laid upon this feature of the proof. But if in fact the parties had agreed upon a sale of the land which only was located south of the Buck Bridge Road, and that no land north of this road was sold or intended to be...
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Ex parte Porter
...hearing is to determine whether the ends of justice will properly be promoted by a transfer or by denial of such motion. Ballentine v. Bradley, 238 Ala. 446, 191 So. 618. This court has held that mandamus is a proper remedy to review an order of the court transferring the cause to the equit......
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