Houston v. Faul

• Decision Date: 31 January 1889
• Citation: 86 Ala. 232,5 So. 433
• Parties: HOUSTON v. FAUL.
• Court: Alabama Supreme Court

5 So. 433

86 Ala. 232

HOUSTON v. FAUL.

Supreme Court of Alabama

January 31, 1889

Appeal from chancery court, Jefferson county; THOMAS COBBS, Judge.

Bill by William Faul against Robert E. Houston and others to have a mistake in the description of land in a deed and mortgage corrected. Complainant sold certain lands to the defendants and others, and made a mistake in describing the lands so sold. The same mistake was made in the description of said lands in the mortgage, which the defendants made to the appellee to further secure the payment of the unpaid purchase money. When the mistake was discovered, complainant offered to correct the mistake by making a corrected deed. This offer was declined by the defendants, and they refused to make the correction in the mortgage given by them. Complainant then made and tendered a corrected deed, conveying the lands which were originally intended to be conveyed, and properly described in this tendered deed; but the defendants declined to receive this deed. Complainant thereupon filed his bill praying for a correction and a foreclosure of the mortgage and tendered a corrected deed. The defendants filed a motion to dismiss the bill for the want of equity, and, while this motion was pending, without having been argued or passed upon by the court, the defendants demurred to the bill on the ground of the want of equity; that the bill did not show a case in which equity would give relief, the mistake having been made through the carelessness or negligence of the complainant or his attorney; that the complainant had an adequate, full, and complete remedy at law,-a misjoinder of parties,-and on the ground of multifariousness in asking for the correction and the foreclosure of mortgage in the same bill. The court overruled the demurrer, and held that the bill contained equity. The defendants appeal.

Garrett & Underwood, for appellants.

Martin & McEachin, for appellee.

STONE C.J.

Parties in attempting to make a contract, sometimes appear to have agreed, when, on closer inquiry, they discover they have not. They misunderstand each other, either as to the subject-matter or as to some term of the agreement. There is, in such case, an absence of that indispensable element of all contracts,-the concurring assent of two minds. Sanford v. Howard, 29 Ala. 684. When this is the case, and it is sufficiently shown, any court having jurisdiction will declare there is no contract. When, however,...