Smalley v. Rogers

• Citation: 232 Miss. 705,100 So.2d 118
• Decision Date: 03 February 1958
• Docket Number: No. 40633,40633
• Parties: J. D. SMALLEY and H. W. Smalley v. J. L. ROGERS.
• Court: United States State Supreme Court of Mississippi

Page 118

100 So.2d 118

232 Miss. 705

J. D. SMALLEY and H. W. Smalley v. J. L. ROGERS.

No. 40633.

Supreme Court of Mississippi.

Feb. 3, 1958.

Hannah, Simrall & Aultman, Hattiesburg, for appellant.

T. W. Davis, Jr., Hattiesburg, for appellee.

ARRINGTON, Justice.

J. D. Smalley and H. W. Smalley, appellants, appeal from a decree of the Chancery Court of Forrest County granting reformation of a certain deed from J. L. Rogers, appellee, to John Hudson, Jr.

On August 27, 1952, appellee was the owner of the surface of the lands in Forrest County described as the E 1/2 of the SW 1/4, Section 5, and the E 1/2 of the NW 1/4, Section 8, all in Township 1 North, Range 13 West. Appellee owned no minerals whatsoever under the SE 1/4 of the SW 1/4 of Section 8, and only owned one-half of the minerals under the E 1/2 of the SW 1/4 of Section 5 and the NE 1/4 of the NW 1/4 of Section 8. On said date, he conveyed all of said lands to John Hudson, Jr., by warranty deed, reserving unto himself one-fourth of the minerals under the 120 acres described as the E 1/2 of the SW 1/4 of Section 5, and the NE 1/4 of the NW 1/4 of Section 8. No exception was made in the deed of the minerals not owned by him.

On September 2, 1952, John Hudson, Jr., conveyed by warranty deed to H. W. Smalley the lands described as the E 1/2 of the SW 1/4 of Section 5, and conveyed to J. D. Smalley the lands described as the E 1/2 of the NW 1/4 of Section 8. Each of these deeds contained the following clause: 'This conveyance is made subject only to such prior reservations of minerals as were reserved by former grantors, it being the intention of the grantor herein to convey any and all mineral interests owned by him under the above described land.'

The record shows that J. D. Smalley acted for his brother, H. W. Smalley, in buying the land.

John Hudson, Jr., and J. D. Smalley both testified upon the trial of the cause, as well as the appellee and the attorney who prepared the deed from J. L. Rogers to John Hudson, Jr. The testimony establishes a clear case for reformation as between the appellee and John Hudson, Jr., on the ground of mutual mistake. Mr. Hudson testified: 'He did tell me that there was one 40 that he didn't have any minerals under, and there were some more he had sold, and, therefore, he was going to have to reserve a portion of it.' He further testified that he carried it to a lawyer to have it checked to see if he was getting any minerals and that it was understood that appellee was to reserve a part of the minerals he then owned; that J. D. Smalley asked him if he would get all of the minerals with the land and that he told him he didn't know anything about the minerals; that J. D. Smalley asked him to give him time to look it over; that he told him he had had it checked and that he, Smalley, could have it rechecked if he wanted to; that J. D. Smalley knew the land was leased and that the portion of annual delay rentals paid to him by Rogers had been turned over to J. D. Smalley; that neither J. D. nor H. W. Smalley had ever demanded any additional rental. The cancelled checks of appellee show that the amount of rentals paid to John Hudson, Jr., by appellee were in the amount of $30 annually. Hudson also testified that he had requested J. D. and H. W. Smalley to execute an instrument to the effect that appellee was the owner of an undivided one-fourth interest in the minerals.

J. D. Smalley testified that Hudson told him, 'You can have what I've got'; that it was his intention in buying the land to acquire such interest as Mr. Hudson had when he sold the land. Upon completion of the examination of J. D. Smalley, the court asked him the following questions:

'Q. Mr. Smalley, when you negotiated with Mr. Hudson to acquire this property and he tendered you the deed, together with his statement, he was conveying to you only that which he had, did you, between that time and the time you paid Mr. Hudson a consideration for whatever it was you acquired, cause an attorney to examine the records of Forrest County, Mississippi, to advise you what you were acquiring? A. I didn't. John had told me he had had it checked, but I didn't.

'Q. Did you at the time Mr. Hudson tendered you a deed know what you were acquiring? A. No, sir.'

One of the assignments argued by the appellants is that the court erred in admitting parol evidence to show the intention of the parties to the deed as the deed was plain and unambiguous. The appellant cites numerous authorities to support his contention, however, these cases are not applicable in reformation proceedings.

'It is practically a universal rule that in suits to reform written instruments on the ground of fraud or mutual mistake, parol evidence is admissible to establish the fact of fraud or of a mistake and in what it consisted, and to show how the writing should be corrected in order to conform to the agreement or intention which the parties actually made or had, and this, even though the instrument in question is within the statute of frauds. So far as the introduction of such proof may be said to violate the statute, it is immaterial whether it comes from the complainant or the respondent. The nature of the action is such that it is outside the field of operation of the parolevidence rule. If this were not so, a rule adopted by the courts as a protection against fraud and false swearing would, as has been said in regard to the analogous rule known as the statute of frauds, become the instrument of the very fraud it was intended to prevent. Evidence of fraud or mistake is seldom found in the instrument itself, and unless parol evidence may be admitted for the purpose of procuring its reformation, the aggrieved party would have as little hope of redress in a court of equity as in a court of law.

'Generally, it may be said that any testimony which tends to prove the mistake alleged or the...