Hataway v. Carnley

• Decision Date: 30 November 1916
• Docket Number: 4 Div. 606
• Citation: 73 So. 382,198 Ala. 39
• Parties: HATAWAY et al. v. CARNLEY.
• Court: Alabama Supreme Court

73 So. 382

198 Ala. 39

HATAWAY et al. v. CARNLEY.

4 Div. 606

Supreme Court of Alabama

November 30, 1916

Appeal from Chancery Court, Coffee County; W.R. Chapman, Chancellor.

Bill by I.M. Carnley against R.J. Hataway and others to reform a deed. From a decree for complainant, respondents appeal. Affirmed.

W.W Sanders, of Elba, for appellants.

J.A Carnley, of Elba, for appellee.

SOMERVILLE J.

We fully agree with the chancellor in his finding that the agreement between the parties was for the purchase, sale, and conveyance of all the land in the specified subdivision lying north of the branch, without regard to the number of acres contained therein. The testimony of the witnesses, the character and condition of the land, and the conduct of the parties, leave no room for reasonable doubt on that issue.

It is the theory of respondent, however, that, under the allegations of the bill, the question of fact to be determined was merely whether the scrivener of the deed erroneously inserted therein a description not intended by the parties; the insistence being that, if complainant knew of and assented to the use of the phrase "nine acres, more or less," then there was in fact no such mistake as a court of equity will correct; the mistake, if any, being in complainant's conception of the legal effect of the deed.

This view of the issue presented by the bill is too narrow, for the allegations, taken as a whole, clearly show that the alleged mistake was the mistake of the parties, and was merely repeated by the scrivener.

If there was any repugnancy in the allegations of the bill in this respect, it was not objected to, and it is not a bar to relief.

When the parties to a deed select descriptive terms for the conveyance of a designated tract of land, which are insufficient to effect their clear purpose, equity will reform the description so as to effect a conveyance of the land agreed and intended to be conveyed. Hemphill v. Moody, 64 Ala. 472; Moore v. Tate, 114 Ala. 582, 21 So. 820; Page v. Whatley, 162 Ala. 473, 50 So. 116; 2 Pom.Eq.Jur. § 845; 34 Cyc. 937b.

When the agreement was made by which complainant exchanged six acres of his own land for the tract here in dispute respondent had never been on the tract and did not know its acreage. Complainant investigated that matter before the deed was made, and informed respondent that there were sixteen or seventeen acres in the tract, and respon...