Duckett v. Lipscomb

Citation287 Ala. 668,255 So.2d 12
Decision Date24 November 1971
Docket Number7 Div. 905
PartiesRobert L. DUCKETT et al. v. Roselle K. LIPSCOMB.
CourtSupreme Court of Alabama

Simmons, Torbert & Cardwell, Gadsden, for appellants.

Martin & Floyd, Gadsden, for appellee.

LAWSON, Justice.

The appeal is by the complainants below from a final decree wherein the trial court refused to reform the description in a deed.

Reformation was sought on the ground that the property described in the deed in question 'is not the property intended to be conveyed by said deed, * * * as a result of and through the mutual mistake of all parties hereto.' The grantee in the deed was the respondent in the trial court and is the appellee here.

One of the established grounds of equitable jurisdiction is the power to reform a written instrument so as to make it conform to the intention of the parties when through a mutual mistake their intention is not so expressed, unless rights of innocent third parties have intervened.--Cobern v. Foshee, 221 Ala. 301, 128 So. 779; Reynolds v. Scott, 257 Ala. 670, 60 So.2d 690.

Where, as here, reformation is sought solely on the ground of mistake, no fraud intervening, mutuality of the mistake is essential.--Darden v. Meadows, 259 Ala. 676, 68 So.2d 709; Kant v. Atlanta, B. & A.R. Co., 189 Ala. 48, 66 So. 598.

In order to warrant equity to grant relief by reformation, the complainant has the burden of showing by evidence that is clear, exact, convincing and satisfactory that the instrument does not express the true agreement of the parties.--Garrett v. Kirksey, 279 Ala. 10, 181 So.2d 80.

The burden upon the complainants is not only to show that the writing sought to be reformed does not express the intention of the parties, but complainants also have the burden of showing what, in fact, the parties had intended the writing should contain.--Garrett v. Kirksey, Supra.

In Page v. Whatley, 162 Ala. 473, 474, 50 So. 116, 117, it is said: 'Equity grants reformation of deeds only when error certainly appears, and never upon a mere probability or a mere preponderance of evidence. (Authorities cited) * * *.'

In Bankhead v. Jackson, 257 Ala. 131, 57 So.2d 609, we took note of the fact that for the purpose of determining whether relief on the ground of mistake as to the quantity of land should be granted, the cases have been divided into two general classes: (1) When the sale is of a specific quantity, which is usually denominated a sale by the acre; and (2) when the sale is of a specific tract by name or description, which is usually called a sale in gross. A contract of sale by the acre is one wherein a specified quantity is material. Under such a sale the purchaser does not take the risk of any deficiency and the vendor does not take the risk of any excess. A contract of sale by the tract or in gross, on the other hand, is one wherein boundaries are specified, but quantity is not specified, or, if specified, is not material, each party taking the risk of the actual quantity to vary to some extent from what he expects it to be. See authorities cited in Bankhead v. Jackson, Supra.

The deed involved in this case, on its face, is a conveyance by the tract or in gross in that the land is described by reference to a government subdivision and by metes and bounds. The quantity of land is not mentioned in the deed.

We are concerned on this appeal with only a question of fact. Therefore, we will refrain from discussing the evidence in detail, as it would add nothing to established law or serve any useful purpose.--s 66, Title 13, Code 1940; Gamble v. Moore, 278 Ala. 104, 176 So.2d 35, and cases cited.

The following summary of the evidence, in our opinion, is sufficient for the purpose of this appeal.

Although no survey was introduced in evidence, and there is no legal...

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7 cases
  • City of Mobile v. Salter
    • United States
    • Alabama Supreme Court
    • November 24, 1971
  • Pinson v. Veach
    • United States
    • Alabama Supreme Court
    • October 3, 1980
    ...mutuality of mistake is essential. Original Church of God v. Perkins, 292 Ala. 283, 293 So.2d 292 (1974); Duckett v. Lipscomb, 287 Ala. 668, 255 So.2d 12 (1971). An error in drafting establishes mutuality of mistake. Williams v. Phillips Petroleum Co., 453 F.Supp. 967 (S.D.Ala.1978); Fideli......
  • Mid-State Homes, Inc. v. Anderton, MID-STATE
    • United States
    • Alabama Supreme Court
    • September 27, 1973
    ...80. When reformation is sought solely on the ground of mistake, no fraud intervening, mutuality of mistake is essential. Duckett v. Lipscomb, 287 Ala. 668, 255 So.2d 12; Darden v. Meadows, 259 Ala. 676, 68 So.2d 709; Grove v. Robertson, 255 Ala. 346, 51 So.2d 528; Ballentine v. Bradley, 236......
  • Williams v. Phillips Petroleum Co.
    • United States
    • U.S. District Court — Southern District of Alabama
    • May 19, 1978
    ...does not express the true intentions of the parties, but also what, in fact, the parties intended it should contain. Duckett v. Lipscomb, 287 Ala. 668, 255 So.2d 12 (1971). There is no ambiguity in the present deed. The recitation of fractional interests is equal to the number of mineral ac......
  • Request a trial to view additional results

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