Kinney v. Ensmenger

• Decision Date: 06 May 1889
• Citation: 6 So. 72,87 Ala. 340
• Parties: KINNEY ET AL. v. ENSMENGER.
• Court: Alabama Supreme Court

6 So. 72

87 Ala. 340

KINNEY ET AL. v. ENSMENGER.

Supreme Court of Alabama

May 6, 1889

Appeal from chancery court, Morgan county; THOMAS COBBS, Chancellor.

W T. L. Cofer, for appellant.

T N. McClellan, for appellee.

SOMERVILLE J.

The bill is filed by the appellee, Ensmenger, to reform a land deed recently executed to the appellants, and also the notes given for the purchase money, so as to make the papers show on their face that a vendor's lien was retained in accordance with what is alleged to have been the mutual agreement between the contracting parties. An injunction was prayed and granted, staying the threatened sale of the land in the mean while; it appearing that the purchase-money notes were not yet due, and that the defendants were insolvent. The appeal is taken from an interlocutory decree of the chancellor overruling a demurrer to the bill, and refusing to dissolve the injunction. The several grounds of demurrer were, in our judgment, properly overruled. According to the allegations of the bill, the defendant P. H. Kinney was one of the purchasers of the land, and not a mere surety on the purchase-money notes, as averred in the answer. In either event, whether interested as a co-vendee or a mere surety, he was a proper party defendant to the bill. Tedder v Steele, 70 Ala. 347; Ramage v. Towles, 85 Ala 588, 5 South. Rep. 342.

If the facts alleged in the bill are true, the case is clearly brought within the jurisdiction of chancery under the equity head of reformation of written instruments on the ground of mistake or fraud, unless the failure of the complainant to inform himself as to the contents of the deed and notes be such culpable negligence as to bar him of his remedy in a court of conscience. The bill avers a distinct agreement between the parties that the deed and notes should show on their face a retention of a vendor's lien, and that the omission of this stipulation from these papers was through the fraudulent collusion of the defendants and one Harrison, who, as real-estate agent, negotiated the sale as attorney in fact of the complainant. Berry v. Sowell, 72 Ala. 14; Pom. Eq. Jur. §§ 870, 1375; 3 Brick Dig. p. 358, § 379 et seq.

The bill, in our opinion, shows no such culpable negligence on the part of the complainant as to bar his right to seek correction of the mistake sought to be rectified. It is not every negligence that will operate to bar in such cases, as is sometimes inaccurately asserted. "It would be more accurate to say," observes Mr. Pomeroy in discussing this subject, "that where the mistake is wholly caused by the want of that care and diligence in the transaction which should be used by every person of reasonable prudence, and the absence of which would be a violation of legal duty, a court of equity will not interpose its relief." 2 Pom. Eq. Jur. § 856. After adding that each instance of negligence must depend largely upon its own circumstances, he further says: "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 a sufficient ground for refusing relief, if it appears that the other party has not been prejudiced thereby." Section 856.

While courts will act on this principle in granting relief, they...