Tillis v. Smith

• Decision Date: 16 January 1896
• Citation: 108 Ala. 264,19 So. 374
• Parties: TILLIS v. SMITH ET AL.
• Court: Alabama Supreme Court

19 So. 374

108 Ala. 264

TILLIS v. SMITH ET AL.

Supreme Court of Alabama

January 16, 1896

Appeal from chancery court, Geneva county; Jere N. Williams Chancellor.

Bill by R. Tillis against R. T. Smith and another to reform a deed. From a decree dismissing the bill, complainant appeals. Reversed.

The bill in this case was filed by the appellant, R. Tillis against the appellees, R. T. Smith and his wife, M. J. Smith on February 22, 1895, and sought the reformation of a certain deed alleged to have been executed by the defendants to the complainant on February 4, 1893. It was alleged in the bill That on February 4, 1893, R. T. Smith and M. J. Smith, his wife, executed and delivered to the complainant a certain deed of conveyance to the following described lands "The S. 1/2 of the N.W. 1/4, and the N.W. 1/4 of the N.E. 1/4, and the N.E. 1/4 of the S.W. 1/4, of section 25, township 2, range 21 E.,"-upon an expressed consideration. That said deed was acknowledged in a lawful manner, so as to convey the homestead; but that on the said February 4, 1893, the defendants were not the owners of the land described in said deed of complaint, and did not intend to convey the lands so described. That they owned the same subdivisions above described, located in section 28, instead of section 25, in the same township and range; and that the deed should have described the lands conveyed as situated in section 28, since these were the lands intended to be conveyed. That the draftsman, in preparing said deed, inadvertently misdescribed the lands; and that demand had been made upon the grantors in said deed, the present defendants, for the correction of the mistake, which was refused. The lands intended to be conveyed were occupied by the grantors as their homestead. In their answer to the bill, the defendants denied that they executed on February 4, 1893, a deed to complainant conveying any property whatever, but that they had delivered to appellant a certain deed to the lands described in the bill, but that said deed was not executed or acknowledged in the manner sufficient to convey a homestead by a married man. The defendants incorporated in their answer four pleas, which were substantially as follows: The first plea denies the execution by Mrs. Smith of the deed, by mark or otherwise; that the mark purporting to have been made by her was not made by her, nor by any one by her lawfully authorized. In the second plea it is averred that she was not examined separate and apart from her husband, as required by law, for the conveyance of a homestead. The third plea averred that the appellant, before filing the bill, conveyed the land by deed to a third party, which was admitted, and that, therefore, he (the appellant) was not the proper party plaintiff. In the fourth plea it is averred that, several years prior to the conveyance by appellees to appellant, appellees had executed a mortgage to appellant conveying the homestead, to secure an indebtedness for supplies and advances, and, in the meantime, appellees executed a second mortgage on the same premises, to another party; that on February 4, 1893, they owed appellant about $300; that appellant sent for them to come to Geneva, his place of business when he told them that their homestead was valuable, and that it would be better for them to deed it to him; that this would defeat the junior mortgagee; that appellant stated to them that the deed was merely a sham, and would not interfere with their enjoyment of the lands conveyed; that M. J. Smith, while expressing her unwillingness to sign it, signed said deed. Appellant stated to her that it would not affect her, as he would allow them five years within which to redeem it, and, relying upon these representations, they were induced to deliver the said deed to the appellant. They then averred that they were ignorant of the legal effect of said deed, and that appellant does not come into this court with clean hands. The first and second pleas were verified by each of the respondents. Upon the submission of the cause, the chancellor was of the opinion that the complainant had not established by sufficient evidence the alleged fact of the execution of the deed sought to be reformed by M. J. Smith, the wife of R. T. Smith, in such a way as to convey the homestead, and it was decreed that relief be refused and complainant's bill be dismissed. From this decree, complainant appeals, and assigns the same as error.

M. E. Milligan, for appellant.

Clayton & Mulkey and G. E. McGowan, for appellees.

HEAD,J.

It is not denied that the instrument whose reformation is sought by the bill misdescribes the lands which the appellees agreed to convey to the appellant, and for the purpose of conveying which they went to his place of business, in the town of Geneva. It is admitted that the appellee R. T. Smith did not own any land in section 25, but that he was possessed of the corresponding subdivisions in section 28, constituting his homestead, and upon which the appellant had a first mortgage. In his testimony, Smith says that he had previously mortgaged these lands to appellant, and that he intended to deed the same lands lying in section 28, instead of section 25. There is therefore no room for doubt or controversy that a mistake was made by the scrivener in respect of the description of the lands, and that, in its present form, the instrument does not express the true intention and meaning of the parties. The jurisdiction of a court of equity to correct such mistakes, when admitted or established by the necessary measure of proof, is too well settled, and has been too often successfully invoked in this state, to require a citation of the cases to be found in our Reports upon this subject; and at this time it is no longer open to debate that reformation may be had of a conveyance designed to pass the husband's exempt homestead, but which, by mistake, fails to correctly describe it, provided the deed or mortgage is executed and acknowledged by him and wife, in conformity with the statute governing such cases. Gardner v. Moore, 75 Ala. 394; Parker v. Parker, 88 Ala. 362, 6 So. 740. The opinion in the case first cited states, arguendo, that the reformation in description which was there prayed for in the bill did not seek to locate the land in a different section, but to correct an admitted imperfection in the designation of it, by erroneous land numbers, belonging to the same section. The fact thus noted was not made the basis of the decision, which lacks much of being an adjudication that reformation will be denied if the mistake is made in respect of the section number. On principle, there is no logical foundation for such a distinction. The same results follow a mistake as to the section which accompany a mistake as to subdivisions of the same section. In either case the mistake is equally harmful, and every reason which exists for correcting the misdescription in the one instance applies with equal force to the other.

It follows, therefore, that the appellant was entitled to relief unless an obstacle is to be found in some of the special defenses, incorporated in the answer. These special defenses were four in number, and were set up separately in the form and under the designation of pleas. The first plea denies the execution by Mrs. Smith of the deed, by mark or otherwise and asserts that the mark purporting to have been made by her was not made by her, nor by any one thereunto lawfully authorized. In his decree dismissing the...