Horne v. J.C. Turner Cypress Lumber Co.

• Decision Date: 04 March 1908
• Citation: 45 So. 1016,55 Fla. 690
• Parties: HORNE et al. v. J. C. TURNER CYPRESS LUMBER CO. et al.
• Court: Florida Supreme Court

45 So. 1016

55 Fla. 690

HORNE et al. v. J. C. TURNER CYPRESS LUMBER CO. et al.

Florida Supreme Court, Division A.

March 4, 1908

Appeal from Circuit Court, Hernando County; William S. Bullock Judge.

Bill by L. Horne and others against the J. C. Turner Cypress Lumber Company and others. Decree for defendants, and complaints appeal. Affirmed.

Syllabus by the Court

SYLLABUS

It is incumbent upon a complainant to allege in his bill every fact, clearly and definitely, that is necessary to entitle him to relief; and if he omits essential facts therefrom, or states such facts therein as show that he is not entitled to relief in a court of equity, he must suffer the consequences of his so doing.

While equity will reform a written instrument when by a mistake it does not contain the true agreement of the parties, yet it will only do so when the mistake is plain and the proof full and satisfactory. The writing should be deemed to be the sole expositor of the intention of the parties, until the contrary is established beyond a reasonable doubt.

The allegata and probata must reciprocally meet and correspond the issues being made by the pleadings, to which the proof must be confined. If the proof must be full and satisfactory in order to warrant a court of equity in decreeing the reformation of a written instrument, and such proof must correspond to and with the allegations upon which such reformation is sought, it is an obvious corollary that such allegations must likewise be full and satisfactory.

In a bill to reform a written instrument, the complainant should set forth the terms of the alleged real agreement and also the instrument as reduced to writing, and point out distinctly and clearly wherein there was a mistake and in what it consisted. A court of equity does not rectify contracts, but only the written instruments purporting to but not in fact, evidencing the terms of contracts.

In order to warrant a court of equity in decreeing the reformation of a written instrument for a mistake, it must be alleged and proved that the reform sought is according to the agreement of both parties at the time the instrument was written and the mistake made. When an instrument is written as one party understands it, and not as the other party understands it, there is no ground for reformation, since a reformation cannot make a new contract which the parties never mutually agreed to make.

COUNSEL

R. L. Anderson and G. C. Martin, for appellants.

Davant & Davant, for appellees. The appellants filed their bill in chancery against the appellees in the circuit court for Hernando county for the reformation of a deed to certain parcels of land therein described. A temporary injunction or restraining order against the defendants was granted by the circuit judge without notice. The bill was amended under leave of the court. A demurrer was interposed thereto by J. J. Pickren and Lazarus B. Varn, two of the defendants, which was overruled, and an answer to the bill, with a demurrer incorporated therein, was filed by the J. C. Turner Cypress Lumber Company, the other defendant. At the final hearing a final decree was rendered sustaining the demurrer, dissolving the injunction, and dismissing the bill. From this decree the complainants have entered an appeal to this court. The deed in question, which is attached as an exhibit to the bill and made a part thereof, was executed on the 30th day of November, 1900, by Robert J. Knight and wife to the J. C. Turner Cypress Lumber Company.

The allegations in the bill relating thereto, immediately following the description of the lands, are as follows:

'And being at that date seised and possessed of the said lands the said Robert J. Knight, with the joinder of his wife, Mary M. Knight, entered into a contract with the defendant the J. C. Turner Cypress Lumber Company by the terms of which the parties then and there agreed, and your orators charge that it was the intention of the parties, to enter into a contract for the conveyance of the said lands by the said Knight and wife to the said the J. C. Turner Lumber Company upon a condition to be set out and expressed in the said deed of conveyance, as follows: That it was the intention of the said parties that there should be a full, absolute, and explicit exception in the said deed of the turpentine privilege on that portion of the said lands above described which contained a growth of pine timber for a period of four years, said four years to begin at such time as was convenient and practicable for the said Knight or his assigns to exercise the same, and especially, your orators charge, that the said Knight in and by the said contract with the said J. C. Turner Cypress Lumber Company excepted such turpentine privilege, to be exercised and enjoyed by the said Knight or his assigns for a period of four years, and that said Knight or his assigns should be permitted to begin the boxing and cutting of timber at such time as was practicable and convenient for the said Knight or his assigns, and that the said Knight or his assigns should enjoy said privilege for a period of four years from and after the date when said pine trees should be boxed; and in this connection complainants charge that it has been impracticable, if not impossible, for the said Knight or his assigns to cut and box and work all the pine trees growing on the said lands, and that only a portion of the same, as hereinafter set out, has been boxed and are being worked for turpentine purposes.

'Your orators charge that by the terms of the said agreement and understanding between the said Knight and the J. C. Turner Cypress Lumber Company that the said Knight intended to retain and not convey to the said J. C. Turner Cypress Lumber Company, and the said J. C. Turner Cypress Lumber Company intended and understood that the said Knight did not convey, but retained, the privilege of working the pine trees on said lands for four years, and that such period should begin at such time as was practicable for the said Knight or his assigns to enjoy the said turpentine privilege.

'Your orators show that in pursuance of the said agreement the said R. J. Knight undertook and attempted to convey to the said the J. C. Turner Cypress Lumber Company the lands above described, with the exception of the turpentine privilege of the character and nature last above described, and on the 30th day of October, 1900, the said Knight and wife executed and delivered a deed of conveyance to the said the J. C. Turner Cypress Lumber Company--a certified copy of same is attached hereto and made part hereof, marked 'A'--and in and by said deed attempted to set out the exception of the turpentine privilege of the nature and kind above set out in your orators' bill; but your orators show that in the drafting and drawing of the said deed of conveyance, and by error of the scrivener, the said contract and agreement made between the said Robert J. Knight and the said the J. C. Turner Cypress Lumber Company was not excepted in the language of their said agreement, nor does the language in said deed set forth the true contract and agreement between the parties, as your orators are advised and believe.

'Your orators charge the said lands were sold, and the consideration for the conveyance for the same was fixed, with reference to the absolute retention by the said Knight of a full turpentine privilege on the said lands, the same to be worked by the said Knight or his assigns for a full period of four years from and after the date when it might be practicable for the said Knight or his assigns to enter upon and cut and box the same.

'Your orators show that in the drawing and drafting of the said deed, and of the clause by which it was intended to preserve the right of the grantor and his assigns, the language in said deed is insufficient, and does not clearly set forth the contract and agreement between the said Knight and the said the J. C. Turner Cypress Lumber Company, in this: Said clause in said deed referred to reads as follows: 'The grantor specially reserves the right to box, cut, and work for turpentine purposes all the pine trees growing upon the premises above described, and each and every part thereof, and a full turpentine privilege, including the right of entry and passage over and upon the above-described lands, for the period of four years; it being specially agreed by the grantee named herein that no other person or corporation shall have the said turpentine privilege or the right of passage over and upon any part of the above-described lands during the said four years, for turpentine and mill purposes, other than the grantor named in this conveyance.' And your orators charge that the said clause in the said deed should have been in the nature of an absolute exception, and not a mere reservation of the turpentine privilege to the said Knight, and should have set forth the full contract agreed upon and understood between the said Knight and the said J. C. Turner Cypress Lumber Company, to the effect that the said Knight and his assigns should have the privilege of beginning the cutting of boxes at any time when it was practicable and convenient to the said Knight to do so, and that they should have a full four-year period to enjoy the said privilege after the boxes were cut in the pine trees growing on said lands.

'Your orators charge that they have been advised that the language in said deed does not fully and properly express the contract, agreement, and understanding between the said Knight and the said the J. C. Turner Cypress Lumber Company, and that the said deed should be reformed to express the real intention of the parties, made and agreed upon at the time of the making of the said

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