Snider v. J.E. Freeman & Co.

• Decision Date: 18 March 1926
• Docket Number: 8 Div. 814
• Citation: 214 Ala. 295,107 So. 815
• Court: Alabama Supreme Court
• Parties: SNIDER et al. v. J.E. FREEMAN & CO.

107 So. 815

214 Ala. 295

SNIDER et al. v. J.E. FREEMAN & CO.

8 Div. 814

Supreme Court of Alabama

March 18, 1926

Appeal from Circuit Court, Lawrence County; J.E. Horton, Judge.

Bill in equity by H.S. Snider, Barclay W. Snider, and Willie Snider against J.E. Freeman & Co. From a decree sustaining a demurrer to the bill, complainants appeal. Reversed rendered, and remanded.

G.O Chenault, of Albany, for appellants.

Sample & Kilpatrick, of Hartselle, for appellees.

MILLER J.

This is a bill in equity filed by H.S. Snider and others against J.E Freeman & Co. It was amended. The bill as amended seeks in the alternative to quiet title to certain five acres of land therein described, or to have a certain mortgage executed by complainants to the respondents on the five acres of land described canceled and marked satisfied on the ground that the mortgage debt had been fully paid, or, if mistaken in this, to have the mortgage reformed so as to cover and embrace the five acres of land, particularly described in the southwest corner of section 34, as agreed between the parties, instead of the five acres of land described in the southeast corner of section 33 of township 6, range 7, which appears in the mortgage.

The defendants, mortgagees, demurred to the bill. The court sustained by decree the twelfth ground of the demurrer, and this appeal is prosecuted by the complainants from that decree, and that decree is the error assigned.

The twelfth ground of demurrer is addressed to that part of the bill alleging and seeking a reformation of the mortgage as to the real property conveyed by it, so as to make it convey the land agreed on between the parties. This ground of demurrer challenges the sufficiency of the bill as to the right to have the mortgage reformed as to the description of the real estate therein because of mistake or fraud. Does the mortgage describe and convey the land intended to be placed therein by the parties under their agreement? Great particularity of averment as well as very clear proof is necessary to authorize the reformation of a mortgage--a written contract. A court of equity has jurisdiction to reform a mortgage as to the real estate conveyed by it when by mistake or fraud it is so drawn as not to fulfill or to violate the intention of the parties in their agreement as to the real estate to be conveyed. Campbell v. Hatchett, 55 Ala. 548; Dexter v. Ohlander, 10 So. 527, 95 Ala. 467.

It appears from the bill as amended that Barclay Snider, one of the complainants, purchased a pair of mules from the respondents for $550 on a credit, the other complainants agreeing to become surety for the debt. It is clear that complainants agreed with the mortgagees, the respondents, to give them a mortgage as security for this debt on their interest in "a certain five-acre tract of land in Lawrence county, Alabama, in the southwest corner of section 34, township 6, range 7, being thirty-three and one-third rods north and south and twenty-four rods east and west." The bill also clearly avers "that said mortgage did not cover the land which had been agreed upon," but that it "covered five acres of other land which lies joining the land above described and lying west thereof, the ownership and title to which was the same as the land agreed to be mortgaged."

From these averments it is clear that the parties agreed and intended that the mortgage should describe the five acres in the southwest corner of section 34, and it should be security for this...