Miller v. Davis
Decision Date | 22 October 1982 |
Parties | Juanita MILLER v. Rosa Bird DAVIS. 81-609. |
Court | Alabama Supreme Court |
Joseph W. Adams, Birmingham, for appellant.
John T. Roach, Jr., Birmingham, for appellee.
The plaintiff appeals from denial of her prayer for cancellation of a deed. We affirm.
The plaintiff, Juanita Miller a/k/a Juanita Seltzer, owned a house and lot as tenant in common with her stepsister, Rosa Lee Davis. On October 10, 1972, they conveyed this property to Rosa Bird Davis, who is Rosa Lee's mother and Juanita's stepmother. The following allegations appear in plaintiff's complaint:
The plaintiff brought the present action in 1981, several months after she discovered that she had signed the deed in question.
The case was tried ore tenus without a court reporter. As reflected in the statement of the evidence filed under Alabama Rules of Appellate Procedure 10(d), the parties testimony included the following additional points. The plaintiff testified that the defendant's grandson James spoke to her about signing the papers and accompanied her to the attorney's office. She did not read what she signed because she did not have her glasses. The defendant testified that she never discussed the matter with plaintiff and did not tell James to have the plaintiff sign the papers. She understood from the beginning that the property was being conveyed to her.
In denying relief to the plaintiff, the trial court noted:
The plaintiff then moved for rehearing and filed an amendment to the complaint, consisting of the following addition: "That the deed was executed by the plaintiff by mutual mistake of the parties." The trial court denied rehearing but allowed the amendment to the complaint, stating that the "mistake of the parties was raised and testimony concerning the question was taken at the oral hearing."
The trial court evidently proceeded on the assumption that the plaintiff's primary theory was fraud or undue influence. The cases properly cited by the trial court as controlling were both actions to set aside deeds based upon allegations of fraud. These cases held that:
Taylor v. Godsey, 357 So.2d at 981.
The plaintiff does not dispute the trial court's specific finding of no undue influence or fraud. Rather, the plaintiff in brief asserts that the relief sought was from the outset based upon mutual mistake of the parties.
The applicable statute is Code of Ala.1975, § 35-4-153, which provides:
"When, through fraud, or a mutual mistake of the parties, or a mistake of one party which the other at the time knew or suspected, a deed, mortgage or other conveyance does not truly express the intention of the parties, it may be revised by a court on the application of the party aggrieved so as to express that intention, insofar as this can be done without prejudice to rights acquired by third persons in good faith and for value."
Cancellation as well as revision or reformation of a deed is a permissible remedy for mutual mistake under the statute. Garnett v. Taunton, 264 Ala. 293, 87 So.2d 425 (1956). However, the plaintiff has not established statutory prerequisites for relief.
"For an instrument to be reformed, there must have been a meeting of the minds and a mutual mistake in executing it that does not express the common intent, or a mistake on the part of one and conduct on the part of the other so that it would be inequitable to deny a mutual mistake...."
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