Parra v. Cooper

• Decision Date: 18 June 1925
• Docket Number: 6 Div. 384
• Citation: 213 Ala. 340,104 So. 827
• Parties: PARRA v. COOPER et al.
• Court: Alabama Supreme Court

104 So. 827

213 Ala. 340

PARRA v. COOPER et al.

6 Div. 384

Supreme Court of Alabama

June 18, 1925

Appeal from Circuit Court, Marion County; Ernest Lacy, Judge.

Bill in equity to reform a deed by Dudley Cooper and others against Mike Parra. From a decree for complainants, respondent appeals. Affirmed.

E.B Fite, of Hamilton, J.C. Milner, of Vernon, and B.A. Lincoln of Columbus, Miss., for appellant.

K.V Fite, of Hamilton, and R.G. Redden, of Vernon, for appellees.

THOMAS J.

The bill is for correction of deed to real property. The bill as amended in this cause was filed by the appellees, in which it is alleged that Dudley Cooper sold to the defendant, Mike Parra, certain property consisting of the merchantable timber on the lands described for a consideration of $4,500 together with a period stated from the date of said instrument to cut and remove said timber. It is further alleged that it was intended by both the complainants and the defendant that the timber and timber rights indicated or as limited therein-above mentioned should be conveyed, and nothing more, and not the fee to the lands specifically referred to, but that the person who prepared said deed made a mistake in its preparation, and so wrote the deed as to make it convey other property not sold and the fee-simple title to the lands described, which was contrary to the agreement and intent of the respective parties. A certified copy of the record of the deed from complainants to defendant is made an exhibit to the bill. The bill further avers that the deed was so drawn up, and the error in the description of the property conveyed was made by the party preparing the same, without the knowledge of the complainants; that they signed the same thinking that it only conveyed the timber and timber rights pursuant to their agreement of sale; that it was mutually agreed and understood between the complainants and the defendant that said sale was only to cover the timber and timber rights on the land specifically described. The prayer of the amended bill asks for reformation so as to conform to the agreement of sale made by the parties.

The defendant filed answer to the bill, setting up his contention or understanding of the fact; that the deed was made in accordance with the agreement of the parties concerned, conveying some of the lands in fee simple, while as to others only the timber and timber rights were conveyed. His answer denied that there was any mistake or that there was mutual mistake; averred that he paid a fair price for the property as described in his deed; and denied all the material allegations of the bill with reference to the subject-matter.

The testimony of complainants' witnesses tended to support their theory that a mistake was made by Mitchell, who was the attorney employed by the complainant Dudley Cooper to prepare said deed; while the testimony of the defendant and his witnesses tended to support the contention of the defendant that the deed correctly expressed the contract as made between the parties to this cause, and that the defendant paid a fair value for all the rights conveyed by said deed. The evidence presented by respondent presents a conflict.

The law of such a case is well established. In a bill for reformation of a deed as to the description of the land conveyed great particularity of averment, as well as very clear proof, is required. Cudd v. Wood, 205 Ala. 682, 89 So. 52; Camper v. Rice, 201 Ala. 579, 78 So. 923; Dexter v. Ohlander, 95 Ala. 467, 10 So. 527; Warren v. Crow, 195 Ala. 568, 71 So. 92.

In a suit for reformation of the description in a conveyance because of mistake, the burden of proof is upon the complainant to make out his case by proof that is clear and convincing--that the intention and agreement he would have substituted in the instrument was that of both parties to such instrument. Such relief is never granted upon a mere probability or mere preponderance of evidence. Hataway v. Carnley, 198 Ala. 39, 73 So. 382; Page v. Whatley, 162 Ala. 473, 50 So. 116; Gralapp v. Hill, 205 Ala. 569, 88 So. 665; White v. Henderson-Boyd Lumber Co., 165 Ala. 218, 51 So. 764.

The rule stated by Mr. Chief Justice Stone has not been departed from. It is:

"When, however, the two minds come together, and agree on the terms of a contract, and a mistake is made, not in the terms agreed, but in their expression, or the memorial made and kept to furnish evidence of them, chancery, as a rule, will reform the memorial or evidence, so as to make it express their real agreement. This is the general rule, and the averments in the present bill bring it clearly within the rule. Alexander v. Caldwell, 55 Ala. 517; Dozier v. Mitchell, 65 Ala. 511; Berry v. Sowell, 72 Ala. 14; Berry v. Webb, 77 Ala. 507; 1 Story Eq. Jur. § 165; Pom.Eq. § 852 et seq.; Graham v. Berryman, 19 N.J.Eq. 29; Conover v. Wardell, 22 Id. 492; Rowley v. Flannelly, 30 Id. 612; 2 Pom.Eq. § 866." Houston v. Faul, 86 Ala. 232, 233, 5 So. 433, 434.

This was the rule of the earlier cases. Johnson v. Crutcher, 48 Ala. 368. It has not been departed from. Traylor v. Clayton, 205 Ala. 284, 87 So. 521.

Negligence that would bar relief was recently considered as follows:

"It is further insisted that the bill shows complainant failed to read over the contract, and was therefore negligent to such an extent as to bar him from the relief of reformation. We are not impressed with this insistence. Negligence sufficient to bar relief does not appear from the averments of the bill. Kinney v. Ensminger, 87 Ala. 340, 6 So. 72; Houston v. Faul, 86 Ala. 232, 5 So. 433; 23 R.C.L. 349, 350." Cudd v. Wood, 205 Ala. 682, 684, 89 So. 52, 54; Peacock v. Bethea, 151 Ala. 141, 43 So. 864.

In Johnson v. Crutcher, supra, it is recited that the...