Walling v. Moss

• Decision Date: 29 June 1940
• Docket Number: 8 Div. 48.
• Citation: 240 Ala. 87,197 So. 30
• Parties: WALLING v. MOSS.
• Court: Alabama Supreme Court

197 So. 30

240 Ala. 87

WALLING v. MOSS.

8 Div. 48.

Supreme Court of Alabama

June 29, 1940

Appeal from Circuit Court, Madison County; Schuyler H. Richardson Judge.

Suit in equity by Lelia Sugg Moss against V. Luke Walling and others to reform certain deeds. From a decree for complainant, named respondent appeals.

Affirmed.

Brickell & Johnston and Taylor & Taylor, all of Huntsville, for appellant.

Lanier Price, Shaver & Lanier, of Huntsville, for appellee.

FOSTER Justice.

This is litigation in which reformation is sought of three deeds, all alleged to carry an error in the description of land resulting from mutual mistake of all the parties.

The land with other tracts was inherited from L. C. Sugg, deceased. In making a division between the several heirs, two of them, Mrs. Lelia Sugg Moss and Harry B. Sugg, were to have three tracts set apart for them separately. A description was quite complicated and long extended. They secured the services of a firm of abstracters and conveyancers in Huntsville.

The tracts of land have been designated for convenience "A", "B" and "C". The deeds which were prepared and executed described "C" in the deed to Mrs. Moss, and "A" and "B" in that to Harry Sugg; whereas it was intended, as Mrs. Moss and Harry Sugg both admit, that Mrs. Moss was to have "A", and that Harry Sugg was to have "B" and "C". "A" was half mile northwest of the northwest corner of "B", and across a community called Toney from it, and contained 105.19 acres: "B" had approximately 90 acres, and "C" was to the southeast of "B", so that its northwest corner was the same as the southeast corner of "B", and "C" contained 81.29 acres. These deeds were executed on April 30, 1936, and immediately Mrs. Moss took possession of tract "A" (though her deed called for "C"), and rented it to a tenant who had possession, lived on it and cultivated it in 1936 and 1937, and to another tenant in 1938. And Harry Sugg took possession of tracts "B" and "C" (though his deed called for "B" and "A").

In January, 1937, Harry Sugg sold his land to respondent Walling, and executed a deed describing tracts "B" and "A", as the deed to him had done. There was a mortgage on tracts "B" and "C" to the Federal Land Bank, which Harry Sugg assumed, which was excepted in the warranty of the deed to Walling. Tract "A" was not included in that mortgage.

The controversy here is between Mrs. Moss and Walling. When Walling bought from Harry Sugg, Mrs. Moss was in possession by a tenant of tract "A". Walling in fact took possession of "B" and "C" by a tenant. "C" was in the main woodland, with about fifteen acres in cultivation, which his tenant cultivated, and he permitted the timber to be freely cut on the balance. Mrs. Moss discovered the error in 1938, and had the abstracter who made the division seek to have it corrected. After negotiation, Walling declined to correct it, but advanced money to cause the tenant of Mrs. Moss to move on to his own place, and to be relieved of rent on such place, whereupon Walling at once put a tenant on tract "A", and this suit resulted in which the court found that there was a mutual mistake in the deed including that to Walling, and ordered them all reformed. From that decree Walling appeals.

The evidence is to the effect that in 1936 Mrs. Moss went into possession of tract "A" by renting it to a tenant, and likewise in 1937 the same tenant rented it from her and cultivated it. So that when, in January, 1937, Walling made his purchase, tract "A" was in the possession of Mrs. Moss. It also satisfactorily appears that Walling did not intend to buy the tract so indicated, did not inspect it himself or by agent, and that he and Harry Sugg agreed upon a sale of tracts "B" and "C," which were embraced in the mortgage to the Federal Land Bank, and of which Harry Sugg had possession, and which did not include tract "A"; but that the deed to him was of tracts "A" and "B", because the description was taken from the deed to Harry Sugg which erroneously included "A".

We need not here consider the...