2 Div. 780.
April 5, 1923.
Appeal from Circuit Court, Marengo County; R.I. Jones, Judge.
Henry McDaniel, of Demopolis, and Palmer Pillans and A. T. Gresham, both of Mobile, for appellants.
An appeal lies from a final decree of the chancery court as a matter of right, and is taken when sufficient surety is lodged with the register, within the time prescribed. Code 1907, §§ 2837, 2868; Acts 1915, p. 711; Acts 1919, p. 84; Jacobs v. Goodwater Co., 205 Ala. 112, 87 So. 363. All the appellants were properly made parties to the bill. Chancery Rules 101-103, Code 1907, pp. 1559, 1560; Wells v. Am. Mortg. Co., 109 Ala. 438, 20 So. 136; Floyd v. Ritter's Adm'r, 65 Ala. 501; Sims' Ch. Pr. 409; 1 C. J. 239. Reformation by a court of equity is appropriate when an agreement as written does not express the true agreement of the parties. Stone v. Hale, 17 Ala. 557, 52 Am. Dec. 185; Greene v. Dickson, 119 Ala. 346, 24 So. 422, 72 Am. St. Rep. 920; Stephenson v. Harris, 131 Ala. 470, 31 So. 445; Merritt v. Coffin, 152 Ala. 474, 44 So. 622. And where an instrument does not, from ignorance of the draftsman, express the true agreement of the parties, equity will reform it. Larkins v. Biddle, 21 Ala. 252; 2 Pom. Eq. Jur. (3d Ed.) p. 1540; Houston v. Faul, 86 Ala. 232, 5 So. 433. Fraud is never presumed; it must be specifically established. The presumption is in favor of innocence. Dudley v. Stansberry, 5 Ala. App. 491, 59 So. 379; Morris Co. v. Barton Allen, 180 Ala. 98, 60 So. 172; Moses v. Katzenberger, 84 Ala. 95, 4 So. 237. When a purchaser, with knowledge of the alleged facts which would entitle him to claim an abatement of the purchase money, enters into new stipulations with his vendor, by which he obtains a benefit and the other party sustains a detriment, he is regarded as ratifying the contract and it becomes obligatory on him. Thweatt v. McLeod, 56 Ala. 375; Edwards v. Roberts, 7 Smedes M. 544; Pearsoll v. Chapin, 44 Pa. 9; 20 Cyc. 92.
Wm. Cunninghame, of Linden, for appellee.
Appellants must show legal injury to themselves. A joint assignment by all appellants is unavailable, unless well taken as to all. Roberts v. Trawick, 13 Ala. 68; Walker v. Jones, 23 Ala. 448; Magruder v. Campbell, 40 Ala. 611; Chavers v. Mayo, 202 Ala. 128, 79 So. 594. The debts from Pope to Pollock and Bernheimer were a mere chose in action; it was personal property, demandable only by Bernheimer. Sharpe v. Miller, 157 Ala. 299, 47 So. 701; Kyle v. Perdue, 87 Ala. 423, 6 So. 296; Shockley v. Christopher, 180 Ala. 140, 60 So. 317; Jones on Mortg. § 1399; 27 Cyc. 1566; 9 Ency. Pl. Pr. 297. The bill must show that the devisees of Pollock had a right to proceed in their own name. Sullivan v. Lawler, 72 Ala. 72; Vincent v. Martin, 79 Ala. 540; Baker v. Mitchell, 109 Ala. 491, 20 So. 40; Bailey v. Selden, 112 Ala. 594, 20 So. 854; Blackburn v. Fitzgerald, 130 Ala. 584, 30 So. 568; Tillery v. Tillery, 155 Ala. 495, 46 So. 582; Wright v. Robinson, 94 Ala. 479, 10 So. 319. Where a purchaser is led to believe that he is getting 360 acres of land, when he is only getting 251 acres, he has the right to damages, irrespective of whether the deed was fraudulently changed. Code 1907, §§ 4298, 2468; Berry v. Wooddy, 16 Ala. App. 348, 77 So. 942; Shahan v. Brown, 167 Ala. 534, 52 So. 737; Terrell v. Kirksey, 14 Ala. 209; Hodges v. Denny, 86 Ala. 226, 5 So. 492. Courts of equity do not grant reformation upon probability, but upon certainty, of error. Hough v. Smith, 132 Ala. 204, 31 So. 500; Hertzler v. Stevens, 119 Ala. 333, 24 So. 521; Moore v. Tate, 114 Ala. 582, 21 So. 820.
Appellee submits a motion to dismiss this appeal upon the theory that appellants, assigning errors here, show no right to appeal, or that they have not sustained any legal injury, and argue to the effect that these appellants were not proper or necessary parties to the cause, and that the same should have been continued in the name of the surviving partner, Bernheimer. There was no demurrer taking the point that these parties were not proper or necessary parties to the cause, nor is the decree overruling the motion to strike the bill of reviver here sought by respondent to be reviewed. The cause proceeded to a final submission, and decree was rendered against these appellants, who were parties complainant in the court below upon a reviver of the cause. We do not think, therefore, that the question argued is presented by motion to dismiss the appeal.
Moreover, it is disclosed by the undisputed proof that the partnership of Pollock Bernheimer had been dissolved, and that Pollock had acquired the entire interest of Bernheimer and continued to own the same. Those claiming under Pollock were therefore the parties really interested in the suit.
Not only was a foreclosure of the mortgage on the real estate sought by this proceeding, but a reformation of the mortgage was also prayed, and likewise a reformation of the deed executed to Pope, which contained covenants of warranty. Whether the devisees under the will were necessary parties under these circumstances, they were certainly proper parties. Thompson v. Campbell, 57 Ala. 183; 34 Cyc. 967 et seq.
The motion to dismiss is overruled.
Upon the Merits.
Upon the merits of the cause we will enter into no detailed consideration of the evidence, which has been given most careful study, but rest content with a brief reference to the pertinent facts upon which our conclusion is based.
We recognize, of course, the high degree of proof and the utmost caution with which the court must proceed in the exercise of its jurisdiction in reforming written instruments, as it involves the invasion of a salutary rule of evidence prevailing at law and in equity. Hertzler v. Stevens, 119 Ala. 333, 24 So. 521.
Upon the question of the reformation of these two written instruments, we are persuaded the complainants have fully met the burden of proof resting upon them in cases of this character.
We think it clear beyond question that Pollock Bernheimer intended to sell, and that Pope intended to purchase, the tract of land known as the McVay place which Pollock Bernheimer acquired from George Nichols in 1895. The acreage was estimated in the Nichols deed at 360, but, as the land was such as lay west of a certain public road, it appears without dispute that no one knew the actual number of acres contained therein, as it could only be ascertained by measurement. The testimony of Pope himself discloses that he had heard it questioned that the place contained 360 acres. The land in the north half of the south half of section 15 was owned and possessed by parties, strangers to this title, who had been in the adverse possession thereof for more than 20 years. The deed was prepared by the attorney of Pollock Bernheimer in Thomasville, Clarke county, Ala., quite a distance from the home of the grantors in Mobile. The attorney did not have the Nichols deed before him, but seems to have gotten the description from a letter. And, indeed, the recitals in the deed following the description of the land clearly show that it was the intention of the grantors to convey only the land they purchased from Nichols. The mistake in the description reading the south half of section 15 instead of the south half of the south half of section 15 would appear to be a natural mistake under all the circumstances, and that it was merely a clerical error of the scrivener appears to our minds to be established beyond all reasonable controversy.
Respondent had lived near this land for a period of at least 30 years, and knew the Nichols place, referred to as the McVay place. Nichols was related to respondent, who had been on the place. He testified on cross-examination that he agreed to pay $1,500 for this land; to use the language of the witness:
"I agreed to pay $1,500 for the Pollock place that they got from George Nichols. They did not own any other land in that immediate neighborhood. I told Pollock I wanted the land he bought from George Nichols."
The mortgage was written by the same attorney, and the same mistake carried forward in the description. We are of the opinion, therefore, the complainants were entitled to reformation both of the deed and mortgage.
A consideration of the evidence as bearing upon an abatement of the purchase price for fraudulent representation as to the number of acres contained in this tract of land has convinced us that the cross-complainant was not entitled to the relief he sought. As previously shown, he was well acquainted with this particular place, and knew the exact acreage was unknown as it had not been measured. The language of the deed disclosed that the grantors were careful to state they would not warrant the number of acres, and instructed their attorney to so notify Pope. The attorney insists that he inclosed a letter with the deed to Pope fully explaining what had been added following the description in the deed before its execution by the grantors. Pope offers proof to show that the letter was not in the envelope when the deed was received. But whether at that time he learned of the exact language of the deed is not so material in view of the fact that he admits that when the deed was filed for record in May, 1905, he then learned of its contents in regard to the acreage, and subsequently, possessing this information, he acquired from the grantors permission to sell timber off the land, for which he admits having received over $600, with which, in June, 1905, he paid the note due November 1, using the balance for individual purposes. In October, 1906, as the due date of the next note was approaching, he had one Hudson to write to the grantors asking for an extension until November 20, at which time he would come to Mobile and settle; no complaint being made as to any shortage of acreage.
We are therefore persuaded the respondent fully knew and understood that the acreage was uncertain and was not warranted to be 360 acres, or any definite amount, but that he bought for a lump sum the place acquired by his grantors from Nichols and known as the McVay place, without reference to definite acreage.
Moreover, at the time Pope obtained permission from Pollock and Bernheimer to sell valuable timber from this property he confessedly had full knowledge of the fact that they did not represent or warrant the acreage to be 360, but, on the contrary, had expressly stated in the deed that they did not warrant the number of acres to be more than the acreage actually conveyed by the deed of George Nichols to them. At that time there were two notes not due in the sum of $500 each, and to denude the land of this valuable timber tended, of course, to greatly lessen the security. Pope, therefore, while the contract was in a sense executory, with full knowledge of all the facts, electing to proceed with its execution, obtaining a benefit, and his grantors sustaining a corresponding detriment, will be regarded as having ratified and confirmed the contract, and will not be allowed subsequently to impeach it. The evidence upon this phase of the case is well within the influence of Thweatt v. McLeod, 56 Ala. 375. We are therefore of the opinion that in either event the cross-complainant was not entitled to relief.
It results, therefore, as our conclusion, that the complainants are entitled to the relief they seek in the original bill, and that the cross-bill should be dismissed. A decree will be here rendered reforming the deed and mortgage as prayed in the original bill, and ordering a foreclosure of the mortgage, and a reference to the register to ascertain the amount due thereon, and a further decree denying cross-complainant relief and dismissing the cross-bill. The cause will be remanded to the court below for further proceedings in conformity with the decree here rendered.
Reversed, rendered, and remanded.
ANDERSON, C. J., and SAYRE and MILLER, JJ., concur.