Clipper v. Gordon, 1 Div. 286

• Court: Supreme Court of Alabama
• Writing for the Court: LAWSON
• Citation: 253 Ala. 428,44 So.2d 576
• Parties: CLIPPER et al. v. GORDON et al.
• Docket Number: 1 Div. 286
• Decision Date: 19 January 1950

Page 576

44 So.2d 576

253 Ala. 428

CLIPPER et al. v. GORDON et al.

1 Div. 286.

Supreme Court of Alabama.

Jan. 19, 1950.

Rehearing Denied March 9, 1950.

Jesse F. Hogan and M. F. Dozier, of Mobile, for appellants.

Caffey, Gallalee & Caffey, of Mobile, for appellees.

LAWSON, Justice.

This is an appeal from a final decree in equity reforming the description in a deed, and the decree overruling demurrer to the bill is also assigned as error.

The bill was filed by Miss Mary B. Jackson and Robert Gordon, as executor of the last will and testament of Miss Dora Jackson, deceased, against Frank L. Clipper and Ruby M. Clipper. Since the appeal was taken and prior to submission to this court Miss Mary B. Jackson has died. As to her, the cause has been revived in the name of Robert Gordon, as executor, and Elizabeth Revel, as beneficiary of the estate of Miss Mary B. Jackson.

There is no averment of fraud or inequitable conduct on the part of respondents. Complainants base their right to equitable relief on the theory of mutual mistake.

It is well established that a court of equity in this state has jurisdiction to reform a written instrument so as to make it conform to the intention of the parties when through a mutual mistake of the parties, their intention is not expressed. Hand v. Cox, 164 Ala. 348, 51 So. 519; Bagley v. Bagley, 206 Ala. 232, 89 So. 739; McKleroy v. Dishman, 225 Ala. 131, 142 So. 41; Beason v. Duke, 246 Ala. 387, 20 So.2d 717.

We recognize the rule, as noted by appellants' counsel, requiring great particularity of averment in bills of this character, Amberson et al. v. Patterson et al., 227 Ala. 397, 150 So. 353, and cases cited; but our cases are to the effect that the rule does not call for a strained and unreasonable construction of the language used or undue refinement or nicety of pleading. The bill is to be construed as a whole and its wording given a reasonable and not unnatural construction. Warren v. Crow, 195 Ala. 568, 71 So. 92; Eastis et al. v. Beasley et al., 214 Ala. 651, 108 So. 763; Camper v. Rice, 201 Ala. 579, 78 So. 923; Snider v. J. E. Freeman & Co., 214 Ala. 295, 107 So. 815; Christopher v. Goode, 226 Ala. 338, 146 So. 881; Phoenix Chair Co. v. Daniel, 228 Ala. 579, 155 So. 363.

The bill in this case avers, in substance, (1) that the Misses Jackson, whom we will refer to as complainants below, entered into a written contract with the Clippers, respondents below, for the sale and purchase of a piece of land and the improvements thereon described in the contract simply as 366 South Lawrence Street in the City of Mobile, Alabama; (2) that an error was made in the description contained in the deed whereby more property was included than the parties to the contract contemplated; (3) that this error of description was made by the Misses Jackson.

While the bill does not specifically aver that a mutual mistake was made, and in fact does aver that the mistake in description was made by the grantors, the Misses Jackson, nevertheless we think that under our decisions mutuality of mistake appears from the averments of the bill.

The rule of our cases is that a court of equity will assume jurisdiction to reform a deed to real estate in the matter of description where there has been an accord of the minds of the grantor and grantee as to the property to be conveyed, but because of a mistake of the draftsman, the property described in the deed is more or less than the parties intended. Trapp and Hill v. Moore and Border, 21 Ala. 693; Alexander et al. v. Caldwell et al., 55 Ala. 517; Dozier v. Mitchell, 65 Ala. 511; Berry v. Webb, 77 Ala. 507; Houston v. Faul, 86 Ala. 232, 5 So. 433; Dulo v. Miller, 112 Ala. 687, 20 So. 981; Traylor et ux. v. Clayton et al., 205 Ala. 284, 87 So. 521; Parra v. Cooper, et al., 213 Ala. 340, 104 So. 827; McCaskill et al. v. Toole, 218 Ala. 523, 119 So. 214; Waller v. Mastin et al., 220 Ala. 479, 125 So. 806; Ballentine v. Bradley et al., 238 Ala. 446, 191 So. 618; City of Oneonta v. Sawyer, 244 Ala. 25, 12 So.2d 82.

Where the bill avers, as does this bill, that the parties had agreed upon the sale of a specific piece of property, and through a mistake in the description, more or less property than agreed upon is included in the deed, mutuality of the mistake is made to appear; it matters not whom the draftsman represented or that one of the parties wrote the deed. In this connection it is said in Ballentine v. Bradley et al., supra, as follows:

'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 sold, mutuality of the mistake was made to appear, and it would be immaterial whom the draftsman represented, nor would it be fatal to relief even if defendant herself had written the deed. The following from McCaskill v. Toole, 218 Ala. 523, 119 So. 214, expresses this thought: 'Where an accord of minds is reached, and the document intended to express such agreement failed so to do by reason of the mistake of the draftsman, it is immaterial who employed him. His mistake was merely the occasion of the parties executing a paper not expressive of their common intent. No matter if one of them is the draftsman, the real concern is: Does it express the agreement of the parties?' See, also, 53 Corpus Juris 948.' 238 Ala. 450, 191 So. 621.

When such averments appear in a bill of this character it is not necessarily deficient because it is not specifically averred in the bill that the mistake was mutual. Camper v. Rice, supra; Phoenix Chair Co. v. Daniel, supra; Snider v. J. E. Freeman & Co., supra.

It is contended that the bill shows that the mistake in the description was due to complainants' own negligence and that the ground of demurrer taking that point should have been sustained. We cannot agree.

In Ballentine v. Bradley et al., supra, we said:

'But the highest possible care is not demanded. As said by Mr. Pomeroy in 2 Pom.Eq.Jur., section 856, 'even a clearly established negligence may not, of itself, be sufficient ground for refusing relief, if it appears that the other party has not been prejudiced thereby'--a statement which this court approvingly quoted in Kinney v. Ensminger, 87 Ala. 340, 6 So. 72. And in Gralapp v. Hill, 205 Ala. 569, 88 So. 665, the negligence that would bar relief is referred to as 'culpable and injurious negligence.' Mr. Pomeroy's further observation, that 'the neglect must amount to the violation of a positive legal duty,' is approved. See, also, Cudd v. Wood, supra [205 Ala. 682, 89 So. 52], and 53 Corpus Juris 974. Under the rule of these authorities, defendant is not barred of relief by any matter of negligence.' 238 Ala. 450, 191 So. 621.

Mutual mistakes are always the result of some negligence but that will not defeat reformation where it is plain there was no fraud or overreaching by anybody. If mere negligence were a defense in this kind of action, there would be no ground for reformation because of mutual mistake, as mistake nearly always presupposes negligence. Home Owners' Loan Corp. v. Bank of Arizona, 54 Ariz. 146, 94 P.2d 437; Taylor v. Burns et al., 250 Ala. 218, 34 So.2d 5.

We come now to consider the question as to whether or not under the evidence in this case the trial court is correct in its final decree reforming the description in the deed.

The burden of proof in such a case as this is upon the party...