Moore v. Tate

• Decision Date: 08 April 1897
• Citation: 114 Ala. 582,21 So. 820
• Parties: MOORE ET AL. v. TATE ET AL.
• Court: Alabama Supreme Court

21 So. 820

114 Ala. 582

MOORE ET AL. v. TATE ET AL.

Supreme Court of Alabama

April 8, 1897

Appeal from chancery court, Lauderdale county; Thomas Cobbs, Judge.

Bill by John S. Tate and others to enjoin H. McVay Moore and others from the prosecution of an ejectment suit against complainants and for the reformation of a written agreement. There was a decree for complainants, and defendants appeal. Reversed.

Simpson & Jones, for appellants.

COLEMAN J.

This is the second appeal in this case. 102 Ala. 320, 14 So. 635. The record of the evidence on the former appeal was such that it became necessary to reverse the case, without determining the merits of the controversy. The appellants, as heirs of Hugh McVay, deceased, instituted an action in ejectment in the circuit court to recover two quarter sections of land. The plaintiffs in the ejectment suit claim title under and by virtue of the following provision in a deed of conveyance executed by Hugh McVay in his lifetime to Henry W. McVay, to wit: "To have and to hold the said tract of land to the use and behoof of him, the said Henry W. McVay, for and during the term of his natural life, without impeachment for waste, and from and after the determination of the estate of the said Henry W. McVay then to the lawfully begotten child or children or lawful issue of the said Henry W. McVay, and in case the said Henry W. McVay should have no child or children or lawful issue, then the reversion of the said tract of land to return to the said Hugh McVay, and his right heirs." Henry W. McVay died without child or children or lawful issue. The defendants in ejectment (the complainants in the present bill) were purchasers by mesne conveyances from Henry W. McVay, the owner of the life estate, according to the provisions of the foregoing deed of conveyance. The complainants, who were the defendants in the ejectment suit filed the present bill, in which it is averred that in the settlement of the estate of Hugh McVay, the ancestor of and from whom the rights of both Henry W. McVay and plaintiffs in the ejectment suit were received, a controversy arose, which was settled by a compromise agreement, reduced to writing, in which it was agreed that Henry W. McVay was to have and own the reversionary interest in said lands, and that the written compromise, duly executed, failed to express the real purpose and intention of the agreement made by the parties. The bill prays for a reformation of the written compromise, and for a perpetual injunction of the suit in ejectment at law. The whole equity of the bill depends upon the right of the complainants to have the agreement reformed, for without this equity the complainants' rights are purely legal. The rule is: "That where the instrument speaks the true agreement between the parties, equity will not reform it because one or both of them may have mistaken its legal consequences. *** When the legal effect of the terms agreed upon by the parties to be employed in a written instrument through a misapprehension or ignorance of their import results in a contract different from that really entered into by them, the court of equity, in the exercise of its moral jurisdiction, will reform it." The burden in such cases always rests upon the complainant to show by evidence that "is clear," "exact," "convincing," "satisfactory," that the written instrument does not truly contain or express the real agreement of the parties. Trapp v. Moore, 21 Ala 697; Guilmartin v. Urquhart, 82 Ala. 570, 1 So. 897; Ohlander v. Dexter, 97 Ala. 476, 12 So. 51; Burnell v. Morris, 106 Ala. 349, 18 So. 82; Mitchell v. Insurance Co., 110 Ala. 583, 17 So. 678. Mr. Pomeroy uses the following language: "The authorities all require that the parol evidence of the mistake and of the alleged modification must be most clear and convincing, or else the mistake must be admitted by the opposite party. The resulting proof must be established beyond a reasonable doubt. Courts of equity do not grant the high remedy of reformation upon a probability, nor even upon a mere preponderance of the evidence, but only upon a certainty of the error." 2 Pom. Eq. Jur. § 859. The same degree of proof is declared in Story, Eq. Jur. (12th Ed.) § 157, and note.

It appears that the parties were represented on the settlement by attorneys, and the evidence tends to show (against which there is no controverting evidence) that the agreement of compromise was drawn up by Mr. Irvine the attorney for Henry W. McVay. We quote so much of the written...