Rogers v. Austill

• Decision Date: 14 May 1925
• Docket Number: 1 Div. 350
• Citation: 213 Ala. 163,104 So. 321
• Parties: ROGERS v. AUSTILL et al.
• Court: Alabama Supreme Court

104 So. 321

213 Ala. 163

ROGERS v. AUSTILL et al.

1 Div. 350

Supreme Court of Alabama

May 14, 1925

Appeal from Circuit Court, Clarke County; Ben D. Turner, Judge.

Bill in equity by Joe Rogers against A.R. Austill and others. From a decree denying relief, complainant appeals. Reversed and remanded, with directions.

T.J Bedsole, of Grove Hill, for appellant.

John S Graham, of Jackson, for appellee Klepac.

Jere Austill, of Mobile, for appellee Austill.

SAYRE J.

Complainant appellant, filed this bill to reform a deed executed by the defendant Aurora R. Austill conveying to him the N.W. 1/4 of S.E. 1/4 of section 10, township 5 north, range 2 east, in Clarke County, whereas he had bargained and paid for N.E. 1/4 of S.W. 1/4 of said section. Complainant's contract for the purchase of the land was had with H. Austill, who had put him in possession, where he had remained for more than 10 years before the filing of this bill; the agreement being that a conveyance would be made upon the payment of all installments of the purchase money. After the death of H Austill, defendant Aurora R., his widow and devisee of all his property, real and personal, undertook to execute a conveyance in pursuance of the obligation of the contract, but erroneously described the land as we have stated. Mrs. Austill confessed the bill, and made known her readiness to execute conveyance as the court might direct. She also suggests to this court that the decree dismissing the bill should be reversed to the end that appellant may have the relief to which, in her opinion, he is entitled. But H. Austill, after his contract with complainant, executed to the Jackson Naval Stores Company a deed of the land he had agreed to let complainant have. By inadvertence he had included this land in a conveyance of what was intended to be a conveyance of all lands he owned in Clarke county not previously disposed of. The Jackson Naval Stores Company was aware of complainant's possession and claim of ownership, nor had it ever claimed the land for itself. But by an inadvertence similar to that which had affected the conveyance to it the Naval Stores Company conveyed the land in question to Klepac, party defendant in this bill, who denies complainant's right to relief.

If the whole evidence and the agreements of counsel shown by the record are to be considered, it is clear enough that complainant should have relief as prayed. This the judge...