Sellers, Bullard & Co. v. Grace

• Citation: 150 Ala. 181,43 So. 716
• Parties: SELLERS, BULLARD & CO. v. GRACE ET AL.
• Decision Date: 20 April 1907
• Court: Supreme Court of Alabama

43 So. 716

150 Ala. 181

SELLERS, BULLARD & CO. v. GRACE ET AL.

Supreme Court of Alabama

April 20, 1907

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

Bill by W. S. Grace and another against Sellers, Bullard & Co. From a decree for plaintiffs, defendants appeal. Reversed and remanded.

W. O Mulkey and C. D. Carmichael, for appellants.

Espy &amp Farmer, for appellees.

HARALSON J.

The bill in this case was to reform a lease or deed, set out as Exhibit A,--to correct a mistake therein,--alleged to have been committed on the appellees, by the fraud of the defendants, acting through one of their number, W. B Sellers, or to cancel and declare void the said deed. The contract of lease or sale, recites that, "for and in consideration of the sum of $245 to us in hand paid by Sellers, Bullard & Co., we hereby bargain and sell to Sellers, Bullard & Co., their heirs and assigns, for a period of ten years, from the date hereof, all the growing timber of all kinds, sizes and descriptions whatever upon the following described lands in Geneva county, to wit: [Describing the lands.] * * * We hereby giving, granting, bargaining, selling and conveying unto the said Sellers, Bullard & Co., their heirs and assigns during the said named ten years, the right and privilege of using and operating any part or all of said timber for turpentine purposes, or any other purpose during the whole or any part of said ten years, together with the right to cut and remove at any time during said term, all or any portion of said timber, * * * it being the purpose and interest (intent) of this conveyance to clothe the said named grantees, their heirs and assigns, with as full and complete title and ownership of all the growing trees of all kinds and descriptions on said lands, for the period named, as of the entire fee to said lands hereby conveyed."

The lease or deed was acknowledged, in due form, by said Grace and wife, before J. W. Pridgen, notary public and ex officio justice of the peace, both acknowledging that they were informed of the contents of the conveyance, and executed the same voluntarily on the day the same bears date. The wife was afterwards examined separate and apart from her husband, and stated that she signed the same of her own free will and accord, without fear, constraint, threats or persuasion of her husband.

The bill alleges in its fourth paragraph, that the grantors did agree and sell to the defendants, the merchantable log timber, that is, all live pine timber that measures "12 inches at 20 feet," and "that is what should be mentioned in said contract, and that alone is what should have been covered by said deed or lease." It further alleges, that complainants can neither read nor write, and that they signed said deed without the same being read over to them, on the assurance of defendants, that it contained only a lease upon the merchantable pine timber on said land and further, that defendants well knew this, when they had complainants to sign the same; that it was obtained through fraud and deceit on the part of the defendants, who took advantage of complainants.

The answer fully denies the allegations of the want of knowledge of complainants of the contents of said lease or deed, and denies that any fraud was perpetrated on them, averring that the deed expresses the true contract of the parties, and that there was no fraud or mistake practiced or made upon complainants in its execution. That at the time of the execution of said deed, there was present J. W. Pridgen, a notary public...