McCaskill v. Toole

• Decision Date: 20 December 1928
• Docket Number: 4 Div. 406
• Parties: McCASKILL et al. v. TOOLE.
• Court: Alabama Supreme Court

119 So. 214

218 Ala. 523

McCASKILL et al. v. TOOLE.

4 Div. 406

Supreme Court of Alabama

December 20, 1928

Appeal from Circuit Court, Geneva County; H.A. Pearce, Judge.

Bill in equity to reform a deed by J.E. Toole against John McCaskill and Densie McCaskill. From a decree overruling a demurrer to the bill, respondents appeal. Affirmed.

A.A Smith, of Hartford, for appellants.

T.M Espy, of Dothan, for appellee.

BOULDIN J.

The bill is for reformation of a deed to real estate in matter of description. The appeal is from a decree overruling demurrers to the bill.

The bill avers the grantor owned the southeast quarter of northeast quarter of a named section; that he sold to the grantees the merchantable timber thereon; that by oversight or mistake of the draftsman the land was described as southwest quarter of northeast quarter of the section; that the grantor did not own the described subdivision and did not contract to sell the timber thereon, but did agree to sell the timber on the subdivision owned by him.

These averments make a clear case of mutual mistake, a meeting of the minds of the parties in the sale of specified property and a misdescription thereof in the deed as executed.

Appellant conceives that the bill is defective in failing to show the draftsman was acting for both parties; that for all that appears he was the agent of the purchaser alone. Cudd v. Wood, 205 Ala. 682, 89 So. 52, is relied upon as authority. That case was fully distinguished from the present one in the later case of Parra v. Cooper, 213 Ala. 340, 104 So. 827.

Where an accord of minds is reached, and the document intended to express such agreement fails so to do by reason of the mistake of the draftsman, it is immaterial who employed him. His mistake was merely the occasion of the parties executing a paper not expressive of their common intent. No matter if one of them is the draftsman, the real concern is: Does it express the agreement of the parties? Parra v. Cooper, supra, and authorities there cited.

Cudd v. Wood, supra, has application where one of the parties has his agent to draw the document and, by the latter's mistake, it fails to express the true intent of his principal, but the other party accepts and executes the document as drawn. The instrument in such case expresses the contract contemplated by one party, but not by the other. There is no meeting of minds. In such case no reformation can be had. It may present a case for rescission.

Appellant suggests the bill fails to show the grantor did not know of the error when he executed the deed; that so far as averred the grantor may have observed the mistake in description and purposely executed it as it is. If so, he could not defeat reformation by inequitable conduct of that sort. It was not necessary to aver the grantor did not perpetrate a fraud. 2 Pom. Equitable Remedies, § 676, and note.

It is now the settled rule in Alabama that a bill for reformation will not be stricken on demurrer nor dismissed for failure to make request of the grantor to correct the mistake before suit brought.

The bill will be retained, and if the respondent comes forward, admits the mistake, and corrects it, and it appears the bill was unnecessary, the complainant will be taxed with the cost. Robbins v. Battle House Co., 74 Ala. 499; Crawford v. Chatt. Sav. Bank. 201 Ala. 282, 78 So. 58; Burch v. Driver, 205 Ala. 659, 88 So. 902.

If, as averred, the...