Cudd v. Wood

• Decision Date: 14 April 1921
• Docket Number: 8 Div. 318
• Parties: CUDD v. WOOD.
• Court: Alabama Supreme Court

89 So. 52

205 Ala. 682

CUDD v. WOOD.

8 Div. 318

Supreme Court of Alabama

April 14, 1921

Rehearing Denied May 12, 1921

Appeal from Circuit Court, Morgan County; Robt. C. Brickell, Judge.

Bill by J.J. Cudd against T.P. Wood to reform a contract and to enforce a vendor's lien, the vendee having failed to pay. Decree for respondent, and complainant appeals. Affirmed.

E.W Godbey, of Decatur, for appellant.

G.O Chenault, of Albany, and T.A. McDaniel, of Hartsells, for appellee.

GARDNER J.

Appellant was the owner of a suburban tract near Hartselle, Ala., which was surveyed and platted, and divided off into lots advertised and auctioned by real estate dealers, the appellee becoming a purchaser of four of the lots, with the privilege of buying others at the same price, which was done. All of the details of the sale were conducted by the real estate dealers without the appellant's participation in any respect. Appellee paid $60 in cash, and executed three notes for $60, each payable 6, 12, and 18 months after date with a stipulation therein that, if default be made in any one of said series and remains unpaid for a period of 30 days, all of the series shall immediately become due and payable, and the holder may, at his option, proceed to enforce collection of all of them. Appellant executed a bond for title obligating himself to convey a good and sufficient title upon the payment of the purchase money. There were mistakes in the description of the lots, both in the bond for title and in the notes, some of the designated numbers of the lots being erroneous, and appellant filed this bill for a reformation of these instruments, and for the enforcement of his equitable lien as vendor. There were four amendments to the original bill, by way of additions thereto. The respondent's demurrer to the bill as last amended was sustained, and from this decree the complainant prosecuted the appeal.

In a bill for reformation very great particularity of averment is required, as well as very clear proof. Camper v. Rice, 201 Ala. 579, 78 So. 923; Dexter v. Ohlander, 95 Ala. 467, 10 So. 527; Warren v. Crow, 195 Ala. 568, 71 So. 92.

In the original bill it was alleged that the lots first purchased included lots 19 to 22, inclusive, and lots 34 and 40 to 46, inclusive, all in block C. An amendment was then filed to the bill averring that the complainant had acquired the title to lot 34, and now offers to convey the same. By a still later amendment it was averred that, if mistaken as to the description set forth, the property sold to the respondent included lots 19 to 22, inclusive, lot 39, and lots 40 to 46, inclusive. The same amendment in the other alternative included still another lot in this description which would make the whole 13 lots instead of 12. There was still another amendment as to the description, being the last amendment filed, in which the complainant attempted to set up other descriptions of the lots, striking nothing from the original bill or the amendments thereto, but adding in a separate paragraph the following general language:

"Complainant strikes from the bill and all amendments all averments inconsistent with the averments of this amendment"

--thus placing upon opposing counsel as well as upon the court the duty of a close examination of the original bill and the several amendments, to ascertain inconsistent averments, and also there is confessedly an error of description in this last amendment, in that lot 23 is included therein when not so intended. This does not meet the requirements of strict pleading in cases of this character, as set forth in the foregoing authorities. The assignment of demurrer taking this point was well made.

As to the error in the description of the lots, no fraud or inequitable conduct is charged; but in equity this feature of the bill rests upon the fact that the mistake was common to both parties, which is an indispensable element to the reformation here sought. While the mutuality of mistake may be sufficiently averred in some of the paragraphs, yet in the bill as last amended paragraph 20 averred in the alternative that the mistake referred to was a mistake on the part of the scrivener, and due to his inadvertence or misapprehension. This averment being in the alternative, and separate and distinct from all others, and the demurrer taking the point, the sufficiency of the bill is to be tested thereby. It is not shown that the scrivener was the agent of both parties, and, construing the pleading most strongly against complainant, it must be held that the scrivener was complainant's agent alone. Therefore, if the mistake was only that of the agent of one of the parties, the complainant, this will not authorize reformation, because mutuality of mistake is not made to appear. 34 Cyc. 920; Meek v. Hurst, 223 Mo. 688, 122 S.W. 1022, 135 Am.St.Rep. 531; Warren v. Crow, supra; Camper v. Rice, supra. This assignment of demurrer was also well taken.

As to the enforcement of the equitable lien, a bill of this character is one in the...