Original Church of God, Inc. v. Perkins

Decision Date11 April 1974
Citation293 So.2d 292,292 Ala. 283
PartiesThe ORIGINAL CHURCH OF GOD, INC., a corporation v. Benjamin F. PERKINS. SC 554.
CourtAlabama Supreme Court

Jerry W. Jackson, Haleyville, for appellant.

Nolen & Enslen, Fayette, for appellee.

LAWSON, Supernumerary Justice.

The appeal is by the complainant below from a final decree wherein the trial court refused to reform the description in a deed.

Reformation was sought on the ground that the property described in the deed is not the property intended to be conveyed because of a mutual mistake of the parties. The grantee in the deed was the complainant below and is the appellant here.

One of the established grounds of equitable jurisdiction is the power to reform a written instrument so as to make it conform to the intention of the parties where, through a mutual mistake, their intention is not so expressed unless rights of innocent third parties have intervened. Cobern v. Foshee, 221 Ala. 301, 128 So. 779; Reynolds v. Scott, 257 Ala. 670, 60 So.2d 690; Duckett v. Lipscomb, 287 Ala. 668, 255 So.2d 12.

Where, as here, reformation is sought solely on the ground of mistake, no fraud intervening, mutuality of the mistake is essential. Darden v. Meadows, 259 Ala. 676, 68 So.2d 709; Kant v. Atlanta, B. & A.R. Co., 189 Ala. 48, 66 So. 598.

In order to warrant equity to grant relief by reformation, the complainant has the burden of showing by evidence that is clear, exact, convincing and satisfactory that the instrument does not express the true agreement of the parties. Garrett v. Kirksey, 279 Ala. 10, 181 So.2d 80.

The deed involved in this case, on its face, is a conveyance by the tract or in gross in that the land is described by reference to a government subdivision and by metes and bounds. The quantity of land is not mentioned in the deed.

The lot described in the deed is apparently located in rural Fayette County and is used for church purposes.

The size of the lot is not questioned. The appellant, the complainant below, in effect, averred in its bill of complaint that the mistake in the deed is that the lot is described therein as being in Section 25, Township 15, Range 11 West, Fayette County, Alabama, while, as a matter of fact, said lot is in Section 28 of that Township and Range.

The appellee, the respondent below, in his answer denied such allegations but in his testimony admitted them and stated, in effect, that the lot described in the deed was that which he intended to convey; that at the time the deed was executed he was under the impression that it was in Section 25 but has since learned that it is situated in Section 28.

Appellee was for several...

To continue reading

Request your trial
14 cases
  • Bailey v. Fed. Ins. Co.
    • United States
    • U.S. District Court — Northern District of Alabama
    • September 30, 2016
    ...to the intention of the parties where, through mutual mistake, their intention is not so expressed...." Original Church of God, Inc. v. Perkins , 292 Ala. 283, 293 So.2d 292, 293 (1974). In the insurance contract context, reformation is an appropriate remedy where a carrier failed to give n......
  • Fid. Nat'l Title Ins. Co. v. Wooden
    • United States
    • U.S. District Court — Northern District of Alabama
    • January 11, 2019
    ...8-1-2 (1975)). Although courts can use reformation to make the contract conform to the parties' intentions, Original Church of God, Inc. v. Perkins, 293 So. 2d 292, 293 (Ala. 1974), the remedy is "not available to make a new agreement." Highlands Underwriters Ins. Co. v. Elegante Inns, Inc.......
  • Clemons v. Mallett
    • United States
    • Alabama Supreme Court
    • January 20, 1984
    ...mutuality of mistake. See Federated Guaranty Life Insurance Company v. Painter, 360 So.2d 309 (Ala.1978); Original Church of God, Inc. v. Perkins, 292 Ala. 283, 293 So.2d 292 (1974). In Palmer v. Palmer, 390 So.2d 1050, 1053 (Ala.1980), concerning reformation due to mutual mistake, this cou......
  • Pinson v. Veach
    • United States
    • Alabama Supreme Court
    • October 3, 1980
    ...is sought solely on the ground of mistake, with no fraud intervening, mutuality of mistake is essential. Original Church of God v. Perkins, 292 Ala. 283, 293 So.2d 292 (1974); Duckett v. Lipscomb, 287 Ala. 668, 255 So.2d 12 (1971). An error in drafting establishes mutuality of mistake. Will......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT