Taylor v. Burns

• Decision Date: 19 February 1948
• Docket Number: 7 Div. 894.
• Citation: 250 Ala. 218,34 So.2d 5
• Parties: TAYLOR v. BURNS et al.
• Court: Alabama Supreme Court

34 So.2d 5

250 Ala. 218

TAYLOR v. BURNS et al.

7 Div. 894.

Supreme Court of Alabama

February 19, 1948

Merrill Merrill & Vardaman, of Anniston, for appellant.

C W. Stringer and Knox, Dixon & Wooten, all of Talladega for appellees.

GARDNER Chief Justice.

The appeal is from a final decree of August 16, 1946, in behalf of complainants (appellees) granting reformation of a deed executed by complainants to defendant (appellant) March 25, 1942, which was duly recorded April 29, 1942.

The bill filed May 29, 1942, and the cause submitted to this court January 13, 1948.

The submission of the cause in the court below on July 30, 1946, was upon testimony taken orally before the court. What matters intervened in the cause from the filing of the bill to the final taking of the testimony is not made to appear and is not here important.

As we view it, the question for consideration is largely one of fact. So far as the law of the case is concerned we have often noted the salutary rule of caution to be observed in cases of this character and with a high degree of proof required, the burden resting upon complainant to establish his case for reformation by clear, convincing and satisfactory evidence. Great Atlantic & Pacific Tea Co. v. Engel. Realty Co., 241 Ala. 236, 2 So.2d 425; authorities cited under Title 9, § 59, Code 1940. See also Title 47, § 136, Code 1940.

The ground for relief in the instant case rests upon the theory of a mutual mistake. The deed executed was prepared by an attorney for complainants, who does not recall with any degree of exactness how he procured the description contained in the deed here sought to be reformed. It was doubtless secured from one Horne, who was engaged by the attorney to make a survey of the property. In any event the description is of such a character that a layman not acquainted with section numbers and the like would more likely rest upon the advise of counsel whom he had employed to prepare the deed. The description reads as follows: 'All of the Southwest quarter of the Northwest quarter (SE1/4 of NW1/4) of Section Twenty-eight (28), Township Sixteen (16) South, Range Five (5) East except a lot on the East side of said forty formerly owned by the Blue Eye Oil Mill and now owned by F. L. England.'

It appears from the proof that the trade was made and largely conducted by Robert Burns, one of the owners. The property came to Robert and Harry Burns and their sister, Mrs. Watson, who resides in New York, by inheritance from their father, who had secured the same from one Jones. The proof for complainants is to the effect that this Jones place was divided by the Southern Railroad and a public road running along the side of the railroad right of way; and that these owners for their own purpose also designated that portion of the place lying north of the railroad as the 'Jones Place Number 1,' and that south of the road 'Jones Place Number 2.' Each place had upon it a dwelling house and a barn. The dwelling house on the north side was perhaps superior to that on the south side, but the barn on the south side was better than that on the north. The proof further justified the conclusion that the property on the south side of the railroad was equally as valuable as that on the north side. The deed, as drawn, it appears covers property both on the north and the south side including both dwellings. Robert Burns in his testimony states very positively that prior to the execution of this deed he went with defendant to this property. Burns was representing himself as well as his sister, who lives in New York, she having entrusted the matter to him. As to Mrs. Watson the agreement appears to be that she did not personally participate in the trade as she resided in New York when she executed the deed. Counsel further seem to insist that her representation by her brother, Robert Burns, acting as her agent, would not suffice. We have read and considered some of the authorities cited, among them Metropolitan Life Insurance Co. v. McClelland, 57 Idaho 139, 63 P.2d 657; Fife v. Cate, 85 Vt. 418, 82 A. 741; Barker v. Pullman's Palace Car Co., C.C., 124 F. 555, and 53 C.J. 947. But we do not read these authorities to that effect. Indeed, the text in 53 C.J. supra, clearly indicates only that mutuality of mistake is essential, and furthermore when the agreement insisted upon as the actual one is that made by an agent, it must be made to appear the agent had authority to make it. But here Robert Burns testifies positively to his full authority to represent his sister Mrs. Watson who entrusted the matter to him. And he further states he communicated with her and that she had agreed to accept the nine hundred dollars. We find nothing in reason or authority which would deny relief merely because Mrs. Watson was not present in person, if in fact there was a mutual mistake.

Burns testified that while on the property, with the defendant, he discussed with him the lines as best he knew, and that he and the defendant had a thorough understanding that the defendant was to get nothing south of the railroad tracks; that no acreage was mentioned and the agreement was made for a sum total of nine hundred dollars. Robert Burns' testimony is further to the effect that after viewing the property he and defendant were at Burns' house where a rough sketch was made of what was to be sold and that a down payment of two hundred dollars was made by the defendant. The wife of Burns wrote out a receipt having misspelled defendant's name, and this receipt discloses that it was a deposit and part payment 'on place known to us as Jones Place...