White v. Henderson-Boyd Lumber Co.

• Decision Date: 20 January 1910
• Citation: 165 Ala. 218,51 So. 764
• Parties: WHITE v. HENDERSON-BOYD LUMBER CO.
• Court: Alabama Supreme Court

51 So. 764

165 Ala. 218

WHITE v. HENDERSON-BOYD LUMBER CO.

Supreme Court of Alabama

January 20, 1910

Appeal from Chancery Court, Geneva County; L. D. Gardner Chancellor.

Suit by E. A. White against the Henderson-Boyd Lumber Company. From a decree for defendant, complainant appeals. Affirmed.

Espy &amp Farmer and Tyson, Wilson & Martin, for appellant.

W. O Mulkey, for appellee.

McCLELLAN J.

Bill to reform a conveyance, in respect of subject-matter, so as to accord with the averred intention and agreement of the parties. To entitle a complainant to such relief it is incumbent on him to show, by clear, exact, and convincing proof that the intention and agreement he would have substituted in the instrument, was that of both of the parties thereto. Hertzler v. Stevens, 119 Ala. 333, 24 So. 521; Keith v. Woodruff, 136 Ala. 443, 34 So. 911, among others.

The deed in question, a copy of which is exhibited with the bill, described the subject of the conveyance as "all the growing timber of all kind, sizes, and description whatever upon the following described lands. * * *" Other terms in the instrument reiterate the intention to convey all the timber on the lands described. The bill seeks the substitution for the quoted and stated matter of description--this description: "All the merchantable pine timber measuring twelve inches and up, twenty feet from base." The conveyance in question was from complainant and wife to the Sellers-Bullard Company, from whom, by subsequent conveyance, the respondent became entitled to the rights of the Sellers-Bullard Company in the premises.

For the complainant, it was shown that he and his wife signed the deed and acknowledged it before one Pridgen, a notary public; that complainant stated to Sellers, of the Sellers-Bullard Company, that he wanted to understand the paper, and, in reply, that Sellers told him he (Sellers) was pressed for time, that the paper contained their agreement as now asserted by the complainant; that thereupon complainant signed the paper, Exhibit A; that complainant did not sell the Sellers-Bullard Company any timber on the lands described, except that comprehended in the description quoted from the bill; and that no one was present, when the agreement of sale was made, except complainant and Sellers. Mrs. White, complainant's wife, corroborated her husband in the reason given by Sellers for not reading the deed on the occasion of its execution. She further testified that Sellers said "that it (deed) was the contract that they had agreed on. They did say that the lease was just as they had agreed on for the sale of the timber." Mrs. White also testified that a day or two before the deed was signed her husband told her that the trade was as complainant now contends. This last matter was inadmissible. It was hearsay, not a part of the res gestæ of the agreement, and was a mere narrative, in the adversary's absence, of what complainant stated he had agreed to. Jones on Ev. (2d Ed.) §§ 344, 345, and authorities in notes. Complainant and wife both testified that complainant did not read the instrument on the occasion of its execution.

On the other hand, it was shown for respondent that complainant took the paper before its execution and appeared to read...