Page v. Whatley

• Decision Date: 10 June 1909
• Citation: 162 Ala. 473,50 So. 116
• Parties: PAGE v. WHATLEY.
• Court: Alabama Supreme Court

50 So. 116

162 Ala. 473

PAGE v. WHATLEY.

Supreme Court of Alabama

June 10, 1909

Appeal from Chancery Court, Houston County; W. L. Parks, Chancellor.

Suit by T. J. Whatley against Monroe Page. Decree for complainant and defendant appeals. Affirmed.

A. E Pace and R. D. Crawford, for appellant.

Espy &amp Farmer, for appellee.

MAYFIELD J.

This is an appeal from a decree in the chancery court of Houston county, reforming a deed made by appellee to appellant, on the ground of mistake.

Equity grants reformation of deeds only when error certainly appears, and never upon a mere probability or a mere preponderance of evidence. Hough v. Smith, 132 Ala. 204, 31 So. 500; Kilgore v. Redmill, 121 Ala. 485, 25 So. 766; Dexter v. Ohlander, 95 Ala. 467, 10 So. 527. A complaint to reform a deed because of mistake must allege a mistake and prove it by clear, exact, and satisfactory evidence. We have carefully examined the evidence shown by the record, and we concur in the finding and decree of the chancellor that the plaintiff was entitled to the relief under the pleadings and proof, and that there was no error in the finding of the chancellor, in the rendition of the decree, or in any other assignment of error, available as a reversal in this case.

We hold that it is shown beyond dispute by the evidence in this record that the description in the deed does not describe the lands intended by the parties to be described, nor the lands that were actually sold by appellee to appellant. While it is uncertain whether the error was the fault of the appellant or of the appellee, it is certain that the description is erroneous, and that it was the fault of one or both. While the proof does not show, beyond a reasonable doubt, that the lands described in the amended bill, and surveyed and measured, and testified to, by the appellee and the witness who assisted in the measuring of the distances, were the lands actually intended to be conveyed and contracted to be sold by the parties, yet it does, in connection with all the other evidence, conclusively show, and furnish sufficiently clear and satisfactory evidence, that the lands they measured, and described in their evidence, were the lands contracted to be sold, which were taken possession of by the grantee and inclosed by him, soon after the contract of sale, and continued to be possessed and inclosed by him up to the time of the trial.

It also conclusively appears...