Booth v. Cornelius

• Decision Date: 07 November 1914
• Docket Number: 337
• Citation: 189 Ala. 44,66 So. 630
• Parties: BOOTH et al. v. CORNELIUS et al.
• Court: Alabama Supreme Court

66 So. 630

189 Ala. 44

BOOTH et al. v. CORNELIUS et al.

No. 337

Supreme Court of Alabama

November 7, 1914

Appeal from Tuscaloosa County Court; H.B. Foster, Judge.

Bill by Florence Booth and others against R.M. Cornelius and others. From a decree in favor of defendants, complainants appeal. Affirmed.

Jones &amp Penick, of Tuscaloosa, for appellants.

Oliver Verner & Rice, of Tuscaloosa, for appellees.

GARDNER J.

The bill in this case was filed by the appellants for the purpose of reforming a certain deed executed on the 20th day of June 1907, by J.R. Booth and wife, Florence Booth, to the appellees. The appellants contend that, through a mutual mistake, unintentionally and inadvertently, the deed was made to convey more land than was contemplated and agreed upon by the parties. The appellees insist that there was no mutual mistake, but that the deed correctly describes the land purchased by them from J.R. Booth, and that they immediately went into possession of the same. A plat of the land is attached as an exhibit to the bill, and shows the land conveyed and the portion thereof in dispute, the latter estimated to contain from one-half to three-fourths of an acre.

The parties to the transaction had originally agreed upon a sale of two acres for a mill site for the appellees. For this purpose a survey was made by one Mitchell and plat drawn, and the parties met at the store of the grantor to consummate the transaction. The record does not inform us what was the consideration to be paid for this two-acre tract. The justice of the peace, one Williams, was present for the purpose of writing the deed and taking the acknowledgements. He began to write the deed, when, according to his testimony, it was suggested by Mrs. Florence Booth that they sell appellees more of the land. Just here there is a sharp conflict in the testimony; the appellants insisting that when this occurred the justice had written a portion of the description in the deed, and that when the parties returned he continued their additional description from that point, and that this was doubtless the origin of the mistake. But the justice gives it as his best recollection that at that time he had only reached that point of the deed referring to the consideration, and through all his examination he adheres to this as his best recollection. The parties then agreed upon the price, and the grantor and one of the grantees, M. Cornelius, then went out to measure the land, and it is insisted by appellants that for this purpose they carried a stick which they first measured. No one accompanied these two parties. The grantor is dead, and the grantees are precluded by law from testifying to what occurred. Upon their return they gave the justice the consideration, which, of course, had been increased from the original agreement, and dictated, so he says, the description to him. To use some of the language of the witness:

"Mr. Cornelius and Mr. Booth, when they came back, gave me what I put down. Mr. Booth and Mr. Cornelius instructed me to do this; *** they gave me specifications for the deed just as I wrote it."

When asked as to whether they dictated the description as from the beginning thereof or at some further...