Page v. Whatley

50 So. 116, 162 Ala. 473, 1909 Ala. LEXIS 323

• Court: Supreme Court of Alabama
• Decided: June 10, 1909
• Status: Published

Opinion

MAYFIELD, J.

This is an appeal from a decree in the chancery court of Houston county, reforming a deed made by appellee to appellant, on the ground of mistake.

Equity grants reformation of deeds only when error certainly appears, and never upon a mere probability or a mere preponderance of evidence. — Hough v. Smith, 132 Ala. 204, 31 South. 500; Kilgore v. Redmill, 121 Ala. 485, 25 South. 766; Dexter v. Ohlander, 95 Ala. 467, 10 South. 527. A complaint to reform a deed because of mistake must allege a mistake and prove it by clear, exact, and satisfactory evidence. We have carefully examined the evidence shown by the record, and we concur in the finding and decree of the chancellor that the plaintiff was entitled to the relief under the pleadings and proof, and that there was no error in the finding of the chancellor, in the rendition of the decree, or in any other assignment of error, available as a reversal in this case.

We hold that it is shown beyond dispute by the evidence in this record that the description in the deed does not describe the lands intended by the parties to be described, nor the lands that were actually sold by appellee to appellant. While it is uncertain whether the error was the fault of the appellant, or of the appellee, it is certain that the description is erroneous, and that it was the fault of one or both. While the proof does not show, beyond a reasonable donbt, that the lands described in the amended bill, and surveyed and measured, and testified to, by the appellee and the witness who assisted in the measuring of the distances, 'were the lands actually intended to he conveyed and contracted to be sold by the parties, yet it does, in connection with all the other evidence, conclusively show, and furnish sufficiently clear and satisfactory evidence, that the lands they measured, and described in their evidence, were the lands contracted to be sold, which were taken possession of by the grantee and inclosed by him, soon after the contract of sale, and continued to be possessed and inclosed by him up to- the time of the trial.

It also conclusively appears that that part of the lands described in the deed in excess of that described in the amended bill was never by the parties intended to be sold or conveyed. It, moreover, so appears that the grantee took possession of that land which both he and appellee thought to be the land conveyed. There seems to have been no .mistake between the parties either as to the particular land sold or as to its extent or the boundaries. The only mistake seems to have been in the measurement of the distance. Whether this measurement, with the computation thereof in feet, was the mutual mistake of both, or of one or the other, is immaterial, as it appears beyond question that there was a mistake in this particular. It certainly appears from the evidence that the grantor understood that he sold to the grantee the lands which the latter took possession of and inclosed. It also, to us, conclusively appears that the grantee understood that the land sold was the land which he took possession of and inclosed, and it also conclusively appears from the evidence that, these are the same lands decreed to he sold, and as to which it is ordered and decreed that the deed be reformed in description so as to correctly describe the lands sold.

While there is a conflict in the evidence, it is only as to the measurements of the boundaries, and not as to the boundaries themselves Of course, distances in description must always yield to fixed boundaries which are clearly and certainly established.

We find no reversible error in the record, the decree of the chancellor is affirmed.

Affirmed.

Dowdell, O. J., and Anderson and McClellan, JJ., concur.