Warren v. Crow
| Decision Date | 01 February 1917 |
| Docket Number | 7 Div. 852 |
| Citation | 73 So. 989,198 Ala. 670 |
| Parties | WARREN et ux. v. CROW. |
| Court | Alabama Supreme Court |
Appeal from Chancery Court, De Kalb County; James E. Horton, Jr. Chancellor.
Bill by J.O. Crow against F.M. Warren and wife. Decree for complainant, and respondents appeal. Affirmed.
See also, 71 So. 92.
Isbell & Scott, of Ft. Payne, and M.W. Howard, of Birmingham, for appellants.
Davis & Baker, of Ft. Payne, for appellee.
The bill is for the reformation and foreclosure of a mortgage and is filed by the assignee of the mortgage against the mortgagors, who are husband and wife. The reformation sought and obtained was to add to the lands accurately described in the mortgage a 37-acre tract, which, as alleged and as found by the chancellor, was intended to be conveyed, and was included in the maps and plats used in negotiating the loans secured by the mortgage, as well as in the mortgagors' written application to the appellee for the loan; but which, by mistake, was not included in the description written as to metes and bounds in the instrument itself. The equity of the bill was denied by the answers of respondents. They introduced testimony, in support of their denials, to the effect that they never intended to include in the mortgage the 37 acres in question.
We agree with the chancellor in his finding that it was intended by all the parties to the mortgage that this 37-acre tract should be included. While, of course, there is a conflict in the oral testimony of the witnesses, we are clear to the conclusion indicated. There is no doubt that the land in question was included in maps and plats which were treated by all the parties as showing the lands to be mortgaged and also in the description of the lands intended to be mortgaged embraced in the application for the loan, and nothing appears to show that it was ever agreed that the 37 acres should be left out of the mortgage or description; hence its omission must have been by mistake or oversight in the drafting of the mortgage.
It appears that the 37 acres in question formed a part of the homestead of the mortgagors, containing the dwelling, etc., and constituting the most valuable part of the homestead; and it was certainly intended to mortgage the homestead, as the mortgage was executed so as to convey the homestead, and it was agreed by the mortgagors to insure the homestead for the benefit of the mortgagee, as his interest should appear.
All these circumstances, which are shown by writing, together with other facts and circumstances, tend to show that it was the intention of all the parties that this 37-acre tract should be included in the mortgage in question. Without the inclusion of this tract the value of the lands conveyed in the mortgage was barely sufficient to secure the amount lent and interest thereon, while with it the security was ample; and it appears that all the parties to the loan and mortgage, at the time of the negotiation, considered the security ample.
It is very true that courts will not reform written instruments on parol proof alone, unless it is clear and conclusive to the fact that the written instrument does not speak truly the agreement of the parties, and shows the agreement actually made and intended to be put in writing, but which, by mistake, error, or fraud, on the part of the party against whom the...
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...201 Ala. 173, 77 So. 699; Trotter Bros. v. Downs, 200 Ala. 158, 75 So. 906; Griffin v. Dawsey, 196 Ala. 218, 72 So. 32; Warren v. Crow, 198 Ala. 670, 73 So. 989; Vinegar Bend Lbr. Co. v. Leftwich, 197 Ala. 352, So. 538; Staples v. City Bank & Trust Co., 194 Ala. 687, 70 So. 115; Adams v. Da......
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