Pullum v. Pullum

• Decision Date: 24 September 2010
• Docket Number: 1090675.
• Citation: 58 So.3d 752
• Parties: Wesley Kire PULLUMv.Peggy Kent PULLUM and the Estate of James W. Kelly.
• Court: Alabama Supreme Court

58 So.3d 752

Wesley Kire PULLUM

v.Peggy Kent PULLUM and the Estate of James W. Kelly.

1090675.

Supreme Court of Alabama.

Sept. 24, 2010.

Lee F. Knowles, Geneva, for appellant.W. Terry Bullard, Dothan, for appellee Peggy Kent Pullum.Alan C. Livingston and William W. Nichols of Lee & McInish, P.C., Dothan, for appellee the Estate of James W. Kelly.BOLIN, Justice.

Wesley Kire Pullum appeals from a summary judgment in favor of Peggy Kent Pullum and the estate of James W. Kelly. We affirm.

Facts and Procedural History

John Pullum owned 160 acres of land in Geneva County. John had two children, Wesley Pullum and Daisy Pullum Mills. John subsequently married Peggy Kent. On March 26, 2007, John instructed his attorney, James W. Kelly, to prepare a warranty deed, conveying 20 acres of the 160 acres to Peggy. The 20–acre parcel included John and Peggy's homestead. The deed described the land as: “The S 1/2 of the SW 1/4 of the NE 1/4 of Section 16, Township 2, Range 25, Geneva County, Alabama, containing 20 acres more or less.” The deed was recorded in the probate office.

On September 17, 2007, John and Peggy signed a deed prepared by Kelly conveying 80 acres of the 160 acres to Daisy. That same day, John and Peggy signed another deed prepared by Kelly, conveying 80 acres of the land to Wesley. The deed to Wesley described the land as the “S 1/2 of the NE 1/4 of Section 16, T2N, R25E, Geneva County, Alabama.” Kelly prepared a deed for Daisy and one for Wesley. Daisy delivered Wesley's deed to Wesley, and Wesley's wife later recorded the deed.

On October 24, 2007, John and Peggy instructed Kelly to file a corrective deed regarding their conveyance to Wesley. The corrective deed provided as follows:

“S 1/2 of the NE 1/4 of Section 16, T2N, R25E, Geneva County, Alabama. LESS AND EXCEPT: The S 1/2 of the SW 1/4 of the NE 1/4 of Section 16, Township 2, Range 25, Geneva County, Alabama, containing 20 acres, more or less.

“....

“It is agreed and understood that this deed is a correction deed executed for the purpose of correcting that certain description in that certain deed executed by John Paul Pullum and wife, Peggy Kent Pullum to Wesley Kire Pullum, II, on September 17, 2007. It was not the intent for the grantors to deed to Wesley Kire Pullum the homestead of John Paul Pullum and wife, Peggy Kent Pullum. It is further agreed and understood that the description in the deed executed on September 17, 2007, was a clerical error and that John Paul Pullum and wife, Peggy Kent Pullum intended for Peggy Kent Pullum to retain fee simple title to the 20 acres less and excepted from the above describe real estate.”

The corrective deed was recorded. John died and was survived by Peggy and his children, Daisy and Wesley. Kelly died and his law office was closed.

On July 10, 2008, Wesley filed a petition to quiet title to the 20 acres against Peggy. In his petition, Wesley alleged that he was the rightful owner of the 20 acres of land on which John and Peggy's homestead was located. On August 8, 2008, Peggy filed an answer. On February 19, 2009, Peggy filed a third-party complaint against Kelly's estate, alleging that Kelly had failed to exclude the 20 acres from the conveyance to Wesley and that she was entitled to compensation from Kelly's estate for the 20 acres. On March 31, 2009, Kelly's estate filed an answer and a counterclaim against both Peggy and Wesley. Kelly's estate sought reformation of the deed to correct the mistake in the legal description of the property in Wesley's original deed. On April 15, 2009, Peggy filed a counterclaim against Wesley, seeking reformation of the original deed.

On July 6, 2009, Kelly's estate filed a motion for a summary judgment. Attached to the motion was an affidavit from Kelly's former legal assistant that provided that she had made a clerical error and had failed to omit the 20 acres from the conveyance to Wesley and that John had expressed his intent that the 20 acres be conveyed to his wife, Peggy. She stated that Kelly had instructed her to prepare a corrective deed and that the corrective deed include a statement of the intent of both grantors to exclude the 20 acres from the conveyance to Wesley. In response, Wesley filed his own affidavit and an affidavit from Daisy. Wesley's affidavit provided that Daisy delivered a deed to him in September 2007 and that a dispute over timber on the land led to his discovery that a corrected deed had been filed. Daisy's affidavit provided that Peggy and John signed the deed conveying land to Wesley, which had been prepared by Kelly with aid of his legal assistant. On October 12, 2009, Peggy joined the summary-judgment motion filed by Kelly's estate.

On October 22, 2009, the trial court entered a summary judgment in favor of Peggy and Kelly's estate. The trial court concluded that John and Peggy did not intend to give Wesley the 20 acres of land that included their homestead and that it was a scrivener's error that had included the 20 acres in the conveyance to Wesley, who did not participate in the transaction conveying the 80 acres to him by mistake. The trial court stated: “In all equity and good conscience the deed shall be reformed to correct the scrivener's mistake so as to exclude the 20 acres previously conveyed to Peggy Pullum. It would be unconscionable not to correct the mistake.” Wesley timely appealed.

Standard of Review

“Our review of a summary judgment is de novo. ‘A motion for summary judgment is granted only when the evidence demonstrates that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Rule 56(c), Ala. R. Civ. P.’ Reichert v. City of Mobile, 776 So.2d 761, 764 (Ala.2000). We apply ‘the same standard as that of the trial court in determining whether the evidence before the court made out a genuine issue of material fact.’ Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988); System Dynamics Int'l, Inc. v. Boykin, 683 So.2d 419, 420 (Ala.1996). In order to defeat a properly supported motion for a summary judgment, the nonmoving party must present substantial evidence that creates a genuine issue of material fact. ‘Substantial evidence’ is ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).”Borders v. City of Huntsville, 875 So.2d 1168, 1176–77 (Ala.2003).

Analysis

Wesley argues that a genuine issue of material fact exists as to whether the unilateral revocation in the corrected deed of the 20–acre interest conveyed to him by the original deed was valid. He also argues that the corrected deed was invalid under the parol evidence rule. Last, Wesley argues that the trial court erred in basing its ruling on unconscionability.

It is well settled in property law that equity may act to reform a deed if the deed does not accurately reflect the intent of the parties. One ground for reformation of a written instrument is mutuality of mistake.

“ ‘Mistake of fact is a well-recognized ground for interposition of a court of equity. 13 Am.Jur.2d Cancellation of Instruments § 31 (1964). Where it appears that by a mutual mistake of all parties the instrument does not conform to or express their intention or agreement, as where by mistake some material part of the instrument is omitted or the deed is drawn to convey a different interest or a greater or lesser estate than was agreed upon, relief may be had in equity against the other party to the conveyance or his privies. 23 Am.Jur.2d Deeds §§ 155, 158 (1965).

“ ‘Although a deed in terms expresses the intention of the parties, if there is a material mistake as to the property to which those terms apply, such as to its identity, situation, boundaries, title, amount, value, and the like, a court of equity may grant appropriate relief. Goodrich v. Lathrop, 94 Cal. 56, 29 P. 329 (1892).’ ”

Long v. Vielle, 549 So.2d 968, 971 (Ala.1989)(quoting Palmer v. Palmer, 390 So.2d 1050, 1053 (Ala.1980)).

“[W]hen a writing through mutual mistake of the parties, or mistake of one of the parties, and fraud or deception on the part of the other, or mistake of the scrivener who drew the contract for the parties, contains substantially more or less than the parties intended or the intention of the parties is not expressed ‘due to inapt language’ it will be reformed to express the true intention of the parties.” Atlas Assur. Co., Ltd., of London, England v. Byrne, 235 Ala. 281, 282, 178 So. 451, 452 (1938). Alabama views scrivener's errors as mutuality of mistake, and such errors are subject to reformation. Sherman v. Woerner Magnolia Farms, Inc., 565 So.2d 601, 604 (Ala.1990). A party seeking to have an instrument reformed must produce clear and convincing evidence that the instrument does not express the intent of the parties. Pinson v. Veach, 388 So.2d 964 (Ala.1980). “[T]he parol evidence rule is no impediment when one seeks to reform a conveyance because of mutual mistake.” West v. Law, 577 So.2d 445, 446 (Ala.1991); § 8–1–2, Ala.Code 1975. Generally, a unilateral mistake is not a ground for reformation. American Liberty Ins. Co. v. Leonard, 270 Ala. 17, 115 So.2d 470 (1959). Reformation is authorized when there is fraud or inequitable conduct on the part of the other party to the contract. Id.

In Gallups v. Kent, 953 So.2d 393 (Ala.2006), a husband and wife executed a deed conveying property to George and Retha Gallups. The husband died and the wife executed a corrective deed purporting to reform the original deed to George and Retha to exclude Retha as a grantee. Years later, a declaratory-judgment action was filed to determine whether Retha's heirs owned any interest in the property. The trial court determined that Retha's heirs had an ownership interest. This Court affirmed the trial court's judgment, stating:

“The...