Kilgore v. Redmill

• Decision Date: 18 April 1899
• Citation: 25 So. 766,121 Ala. 485
• Parties: KILGORE v. REDMILL.
• Court: Alabama Supreme Court

25 So. 766

121 Ala. 485

KILGORE v. REDMILL.

Supreme Court of Alabama

April 18, 1899

Appeal from chancery court, Walker county; Thomas Cobbs, Chancellor.

Bill by J. R. Kilgore against W. H. Redmill to have enjoined an action of ejectment, and to reform a deed to a small tract of land, executed by the complainant to the defendant. The second and third paragraphs of the bill were as follows:

"(2) That on the 23d day of January, 1893, orator sold unto W H. Redmill a small track of land described as follows Beginning at the southwest corner of the northwest 1/4 of the northwest quarter of Sec. 9, Tp. 14, range 7 west, and run north 327 feet, more or less to fence corner, thence easterly along said fence 512 it. more or less to Camak's Mill road, thence north 15 feet, thence westerly parallel with said fence 512 feet more or less to the section line, thence south to the beginning corner, the said tract being the strip 15 feet wide now used as a road by W. H. Redmill; and said respondent purchased the same to be used as a private road and took possession thereof, and paid orator the sum of $17 as the purchase price therefor that a deed was executed by orator to respondent, intending to convey said lands, a copy of which is hereto attached, marked 'Exhibit A' and made a part of this bill; that orator and respondent thought that the deed correctly described the land sold, but owing to their mutual mistake in the description, the deed described lands a few feet south of the lands sold and intended to be conveyed.

"(3) That the said W. H. Redmill has instituted suit in the circuit court of Walker county, Ala., against the orator for the recovery of the following lands, to wit: N.W. 1/4 of N.W. 1/4 of Sec. 9, Tp. 14, range 7 west; that the tract of land described in the deed as stated in section 2 in this bill, Exhibit A, is embraced in the said suit."

It was alleged in the fourth paragraph of the bill that the complainant tendered a deed to the defendant with a true description of the land sold, demanded a quitclaim deed from the defendant to the lands described in the deed attached to the bill as Exhibit A, but the defendant refused either to accept the deed tendered or to give the one requested. In the deed, which is attached as Exhibit A to the bill and which was executed by the complainant to the defendant, the lands conveyed are described as follows: "Beginning at the southwest corner of the northwest 1/4 of the N.W. 1/4 of Sec. 9, Tp. 14, R. 7 west, and run north 324 ft., thence east 542 feet more or less to Camak's Mill road, thence north 15 ft., thence west 542 ft. more or less to the section line, thence south to the beginning corner, together with all and singular the tenements and appurtenances thereunto belonging, or in any wise appertaining." The other facts of the case are sufficiently stated in the opinion.

Upon the final submission of the cause on the pleadings and proof, the chancellor adjudged that the complainant was not entitled to the relief prayed for, ordered the injunction dissolved, and decreed that the bill be dismissed. From this decree the complainant appeals, and assigns the rendition thereof as error. Affirmed.

Norvell & Smith, for appellant.

Coleman & Bankhead, for appellee.

HARALSON J.

Suit to enjoin an action for the recovery of land, and to reform a deed for an alleged mutual mistake in the description of land in a deed of conveyance.

The description of the land conveyed is set out in section 2 of the bill, and the deed executed by complainant to defendant is made an exhibit, A, thereto. But nowhere in the bill is it clearly alleged in what the mistake, which complainant would have corrected, consists. In sections 3 and 4 are to be found the only attempts to indicate the mistake. In the third it is averred, that the defendant, Redmill, has instituted a suit in the circuit court against the complainant for the recovery of a certain 40-acre tract of land in a designated section and that the tract of land described in complainant's deed, Exhibit A, is embraced in said suit. This is an averment merely, that the tract conveyed, and not that intended to be conveyed, but which by mistake was not conveyed, is embraced in said 40-acre tract. Nor does section 4 of the bill contain any description of the land intended to be conveyed but which was not. It merely states that complainant tendered a deed to defendant, with the true description of the land sold to...