Gralapp v. Hill

• Decision Date: 21 April 1921
• Docket Number: 1 Div. 170
• Citation: 88 So. 665,205 Ala. 569
• Parties: GRALAPP v. HILL.
• Court: Alabama Supreme Court

88 So. 665

205 Ala. 569

GRALAPP v. HILL.

1 Div. 170

Supreme Court of Alabama

April 21, 1921

Appeal from Circuit Court, Mobile County; Joel W. Goldsby, Judge.

Bill by W.A. Gralapp, grantor, against Annie Hill, grantee, to correct description in a deed. From a decree denying relief complainant appeals. Affirmed.

Smiths Young & Leigh, of Mobile, for appellant.

Jesse F. Hogan, of Mobile, for appellee.

SOMERVILLE J.

The evidence is clear and convincing that the parties to the deed mutually intended and agreed that there should be excepted from the tract conveyed by complainant to respondent a lot in the southeast corner of the tract of sufficient width and depth to include complainant's storehouse and a small space to the west and north of the building, without reference to the number of feet required for that purpose. By reason of a mutual misconception as to the proper point of beginning, the excepted tract was described as running west 120 feet from a point 55 feet west of the center of the track of the Mobile & Ohio Railroad; whereas, to include the storehouse within the measurement stated, the beginning point should have been on the western boundary of the railroad right of way, which was 98 1/2 feet from the center of the track.

The bill alleges, and the evidence shows, that complainant informed respondent of the error in the description, and requested its correction, which was refused.

On the affirmative aspects of the case made by the bill, complainant was entitled to the relief prayed. Hataway v Carnley, 198 Ala. 39, 73 So. 382.

Respondent, however, sets up in avoidance of complainant's equity the facts: (1) That complainant was culpably negligent in not knowing or ascertaining the true width, and the western boundary, of the right of way; (2) that he misrepresented to her the width of the right of way, and misinformed her as to the location of the eastern boundary of the lot she purchased, so that the lot conveyed to her is less in width by 43 1/2 feet, on a front of 429 feet, than the tract pointed out to her by complainant as the tract to be conveyed; and (3) that he misrepresented to her the condition of the dwelling house and stable on the tract purchased.

1. While complainant was unquestionably careless in the matter of designating the correct point of beginning, from which the boundary lines of his excepted lot were to be measured and fixed, yet this did not amount to that culpable and injurious negligence which would bar him from the corrective relief which he seeks.

"The conclusion from the best authorities seems to be that the neglect must amount to the violation of a positive legal duty. The highest possible care is not demanded. 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." 2 Pom.Eq.Jur. (1st Ed.) § 856, cited with approval in Kinney v. Ensminger, 87 Ala. 340, 6 So. 72, and Greil v. Tillis, 170 Ala. 391, 54 So. 524.

So far as the excepted lot is concerned, complainant's mistake in the description furnished could not have injured respondent, and did not amount to a breach of legal duty.

2. The evidence shows without dispute that complainant deceived respondent as to the size of the tract she bought of him, by telling her that the railroad right of way extended only 55 feet from the center of the track, and that the fence inclosing the right of way was not on the line. Respondent had a right to rely upon those statements, and presumably did rely upon them. The location of the eastern...