Snodgrass v. Snodgrass

• Decision Date: 23 October 1924
• Docket Number: 8 Div. 568.
• Parties: SNODGRASS ET AL. v. SNODGRASS.
• Court: Alabama Supreme Court

101 So. 837

212 Ala. 74

SNODGRASS ET AL. v. SNODGRASS.

8 Div. 568.

Supreme Court of Alabama

October 23, 1924

Appeal from Circuit Court, Jackson County; W. W. Haralson, Judge.

Bill in equity by W. E. Snodgrass against J. D. Snodgrass (revived in name of Texas Snodgrass and others as complainants). From the decree, complainants appeal. Reversed and remanded.

David A. Grayson, of Huntsville, and Ernest Parks, of Scottsboro for appellants.

D. P Wimberly, of Scottsboro, for appellee.

THOMAS J.

The submission is on motion and on merits.

At the time of filing the transcript, motion or petition in the nature of the common-law writ of error coram nobis, or coram vobis, was also filed. Authority for the petition is urged under provisions of section 140 of the Constitution . That section of the organic law is without application to the procedure sought by the motion. The writ of coram nobis, or coram vobis, as it is sometimes indiscriminately called, was recognized to be of force in this jurisdiction, in Holford v. Alexander, 12 Ala 280, 46 Am. Dec. 253. It was there held the writ can be prosecuted only by one who was a party of privity of record or injured by the judgment, and that any fact which was put in issue and adjudicated upon the trial will not be reconsidered, and it must be directed to the court rendering the judgment. 23 Cyc. p. 883, D; 9 Cyc. p. 976; 8 Words and Phrases, 7838; 2 R. C. L. p. 305 et seq.; 1 Arch. C. Pr. K. B. 234; annotations of Corpus Juris and Cyc. 1921, p. 1592. However, it has been said that this writ is strictly a common-law writ, and has no place in chancery procedure. Bradford v. White, 130 Ark. 532, 197 S.W. 1175, L. R. A. 1918A, 1177; Reid's Adm'r v. Strider's Adm'r, 7 Grat. (Va.) 76, 54 Am. Dec. 120. It is sufficient to say that no relief can be granted under said motion or petition. Without binding the court in the premises the petitioners may find their remedy in a bill of review (Code, § 3178; Willis v. Rice, 157 Ala. 252, 48 So. 397, 131 Am. St. Rep. 55; Gill v. More, 200 Ala. 511, 76 So. 453), or in an original bill in the nature of a bill of review. Sims v. Riggins, 201 Ala. 99, 77 So. 393; Graves v. Brittingham, 209 Ala. 147, 95 So. 542.

The original bill, by W. E. Snodgrass against J. D. Snodgrass, was for reformation of deeds confirming a parol partition of lands between said parties as tenants in common, and to enjoin ejectment. The answer thereto was made a cross-bill, for the purpose of establishment of a disputed boundary line between the lands of the respective parties, who were brothers and sole heirs at law of J. Thomas Snodgrass, deceased, and as such were tenants in common in the lands which the said J. Thomas Snodgrass possessed at the time of his death. It is averred in the bill that the respective grantees went into the physical possession of their respective allotments some months prior to the date "when the deeds were executed and delivered," and that complainant has since been in the actual occupancy and possession of the land delivered to him pursuant to the partition agreement.

In Betts v. Ward, 196 Ala. 248, 72 So. 110, it was held that, where tenants in common have parol partition of their lands (held jointly), and in consummation thereof there is delivered and taken the exclusive possession of the lots or tracts so set apart to such person by the parol agreement, such parties to the executed agreement, or their successors in title vitiating the same, are estopped to repudiate (in the absence of fraud) the agreement, and their interest in the lands set apart to the other ceases to exist in equity. The cases are collected in Betts v. Ward, supra, touching parol agreements and "family settlements." It is held that such partitions are favored by the courts, and, when consummated by the change of possession pursuant thereto, they will be enforced as to formal conveyance, though the bar of the statute of limitation may not have elapsed in favor of such party asserting his title or right under the partition.

The authorities touching reformation of conveyances are agreed that (1) where a mutual mistake is made though there was a meeting of the minds of the parties, and the instrument as written does not express that which the parties agreed upon, or (2) where there has been a mistake of one of the parties, accompanied by fraud or other inequitable conduct of the other, reformation may be had in a court of equity, that is, to require by decree that the conveyances conform to the arrangement or agreement entered into according to the true intention of the parties, or that they be freed from the fraud and protected from the inequitable conduct of the other, if carried into the conveyances. Consumers' Coal & Fuel Co. v. Yarbrough, 194 Ala. 482, 488, 69 So. 897; Hammer v. Lange, 174 Ala. 337, 56 So. 573; Booth v. Cornelius, 189 Ala. 44, 66 So. 630; Holland Blow Stave Co. v. Barclay, 193 Ala. 200, 69 So. 118; Stricklin v. Kimbrell, 193 Ala. 211, 69 So. 14; Hampton v. Reichert, 206 Ala. 463, 90 So. 311; Gralapp v. Hill, 205 Ala. 569, 88 So. 665; Hand v. Cox, 164 Ala. 348, 51 So. 519; Guilmartin v. Urquhart, 82 Ala. 570, 1 So. 897; 4 Pom. Eq. Jur. 1376. In Hataway v. Carnley, 198 Ala. 39, 40, 41, 73 So. 382, 383, the declaration is contained that:

"When the parties to a deed select descriptive terms for the conveyance of a designated tract of land, which are insufficient to effect their clear purpose, equity will reform the description so as to effect a conveyance of the land agreed and intended to be conveyed. *** Unquestionably, complainant bought, and respondent sold, this land simply as a known, visible tract, without regard to its acreage. ***"

Was that the case in the suit before us?

The questions of fact might have been simplified, if other lands not subject to partition between W. E. and J. D. Snodgrass were eliminated. That the title or ownership of the southeast quarter of the northeast quarter of section 24, township 4, range 6 east, is not the subject of this controversy is attested by its omission from the bill, answer and cross-bill, answer to the cross-bill, and the agreement of counsel contained in the record. Tait v. Am. F. L. Mortg. Co., 132 Ala. 193, 200, 31 So. 623; N. C. & St. L. Ry. v. Hobbs, 120 Ala. 600, 609, 24 So. 933. See, also, Hodge v. Joy, 207 Ala. 198, 92 So. 171; Chandler v Home Loan Co. (Ala. Sup.) 99 So. 723; Winsett v. Winsett, 203 Ala. 373, 83 So. 117- Lunsford v. Shannon,

208 Ala. 409, 94 So. 571. The failure to bring in a necessary party may be taken by this court ex mero motu. Hodge v. Joy, 207 Ala. 198, 92 So. 171.

When the subject of the litigation is real property, it is important that the proof be confined to the allegata, and without allegation the proof is unavailing. The decree is reversed, to give opportunity to eliminate all lands not held jointly by the parties, and therefore not the subject of a partition. On another trial the inquiry should be confined to the lands and boundaries thereof that W. E. and J. D. Snodgrass owned as tenants in common with J. Thomas Snodgrass, at the time the latter died intestate, leaving as his heirs at law the said W. E. and J. D. Snodgrass. These rules may not be disregarded when the controversy takes the form of establishing a disputed boundary of lands in chancery. In Turner v. De Priest, 205 Ala. 313, 87 So. 370, it is said:

"This court had held that the jurisdiction of courts of equity extended to the establishment of disputed boundaries, and that the jurisdiction is ancient and well defined, but did not extend to every case of disputed boundary, or every case where the boundary has become confused or obliterated, unless some special ground of equitable interposition is shown, predicated on the fraud or neglect of duty of the defendant, whereby the confusion or obliteration has resulted."

In Chappelear v. McWhorter, 204 Ala. 269, 85 So. 386, the observation is made that no question of the title to the land is projected by averments of the pleading. Such is the lack of pleading as to the southeast quarter of the northeast quarter of section 24, township 4, range 6 east, made the subject of the decree appealed from; that is, the decree of reformation, under the instant pleading as to said 40-acre tract, was beyond the purview of section 3052, subd. 5, of the Code, or amendment thereof by General Acts 1923, p. 764. Goodman v. Carroll, 205 Ala. 305, 87 So. 368; Lee v. Dunn, 205 Ala. 689, 89 So. 55; Jasper v. Eddins, 208 Ala. 431, 94 So. 516.

There is much evidence as to whether mutual mistake or estoppel had intervened concerning the west half of the northwest quarter of fractional section 25, township 4, range 6 east, and that portion of the south half of such fractional section lying south and west of a line variously designated in the evidence as extending from a given point on the north bank of the Tennessee river, in a northwesterly direction, along and with an old hedgerow or picket fence, to and by a hackberry tree or trees, to or towards what is called the Gullatt corner, at or about the center of the northwest quarter of said section. Under the rules of law having application to such calls in a conveyance, the calls prevail over an inconsistent description of the area, 57 1/2 acres. Such recitals of area are not sufficient to limit the other definite calls of the deed, such as references to geographical and physical boundaries, and to governmental surveys, etc. The maps in evidence are not convincing that only the limited area of 57 1/2 acres stated in said deed was intended to be conveyed. So, also, the quitclaim deed from Mrs. Snodgrass, when considered with said warranty deed and the preponderance of the evidence, has not that effect, merely quitclaiming, as Mrs. Caroline...