WALKER, J.-
It is well settled that the reformation df a conveyance, or other written instrument, because of an alleged mistake therein, Will not be decreed unless such mistake is fully and satisfactorily shown by clear and distinct proof. Marsh v. Marsh, 74 Ala. 418; Guilmartin v. Urquhart, 82 Ala. 570; 1 Brickell’s Digest, 358. Though much of what was .said by the witnesses in this case must be discarded as irrelevant and incompetent evidence, and though it is impossible to reconcile the conflicts in the testimony, still, after carefully going through the evidencie, and sifting out such of it as is illegal, and rejecting what is obviously unsatisfactory and untrustworthy, we can not avoid the conclusion that in the drafting of the deed of Pittman and wife to Weathers a mistake was made in including that paid of the land which was also included in the descriptions in the conveyances subsequently made to G. W. Hill and to I. G. Hill respectively. The deed in question was written by Mr. Handley, who was a disinterested witness of what occurred at the time of the sale and conveyance of the land. It clearly appears from his testimony that the understanding of both Pittman and Weathers was that the deed was to cover only that [495] part of the former’s land lying West of what was known as the W. D. Mickle road. The witness makes plain how he fell into the error in framing a description of the land intended to be conveyed. The version of the transaction given by this witness is strongly corroborated by the preponderance of the testimony to the effect, that Weathers took possession under his deed only of the land lying West of the Mickle Koad, that Pittman retained possession and control of the strip of land East of that road, which is the subject of dispute in this case, until he sold and conveyed that with other land to G. W. Hill, and that G. W. Hill and I. G. Hill successively have possessed .and controlled that strip of land since the date of the former’s purchase from Pittman. Itis true that the appellant Weathers •claims that all the land described in the deed to him was intended to be conveyed, and that since the date of his purchase in 1874 he has had possession and control of the strip in dispute. Of the evidence in support .of this contention it suffices to say that it does not satisfactorily explain how such claim can be reconciled with I. G. Hill’s conduct unequivocally indicating a continued assertion by him of a claim of ownership, which claim, as to part at least of the property in dispute, was acqriiesced in by Weathers, as is shown by his offer to purchase from Hill a house located on that land. It appears from the record that the deed to Weathers, in which is the alleged mistaken description, was not recorded until 1886, twelve years after its execution, and seven years after the •execution by Pittman of the deed to G. W. Hill. The record, therefore, did not afford notice to G. W. Hill or to I. G. Hill, .at the dates of their respective purchases, that a portion of the land included in the deeds to them was also described in a former conveyance by Pittman. It further, appears- that the bill in this case was filed within a reasonable time after the discovery of the alleged mistake and of Weathers’ assertion of .a claim to the strip in dispute.
The bill as amended sufficiently avers wherein the mistake •consists and the ground of relief therefrom. It does not, however, aver that a request had been made for the correction of the mistake, and one of the grounds of demurrer sets up this lack of averment as a defect in the bill. The allegations in the bill to the effect that the defendant Weathers had commenced to trespass upon the stip of land in dispute and was actively setting up a claim thereto under his deed show a state of facts sufficient to relieve complainant of the duty of requesting a correction of the mistake before filing the bill; for the bill makes it plain that Weathers had.assumed such an attitude in reference to the matter as to exclude all hoi)e or ex[496] pectation of securing his compliance with such request. The observance of a vain and fruitless ceremony is not by the law made a prerequisite to the assertion of a right. — Robbins v. Battle House Co. 74 Ala. 499.
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WALKER, J.-
It is well settled that the reformation df a conveyance, or other written instrument, because of an alleged mistake therein, Will not be decreed unless such mistake is fully and satisfactorily shown by clear and distinct proof. Marsh v. Marsh, 74 Ala. 418; Guilmartin v. Urquhart, 82 Ala. 570; 1 Brickell’s Digest, 358. Though much of what was .said by the witnesses in this case must be discarded as irrelevant and incompetent evidence, and though it is impossible to reconcile the conflicts in the testimony, still, after carefully going through the evidencie, and sifting out such of it as is illegal, and rejecting what is obviously unsatisfactory and untrustworthy, we can not avoid the conclusion that in the drafting of the deed of Pittman and wife to Weathers a mistake was made in including that paid of the land which was also included in the descriptions in the conveyances subsequently made to G. W. Hill and to I. G. Hill respectively. The deed in question was written by Mr. Handley, who was a disinterested witness of what occurred at the time of the sale and conveyance of the land. It clearly appears from his testimony that the understanding of both Pittman and Weathers was that the deed was to cover only that [495] part of the former’s land lying West of what was known as the W. D. Mickle road. The witness makes plain how he fell into the error in framing a description of the land intended to be conveyed. The version of the transaction given by this witness is strongly corroborated by the preponderance of the testimony to the effect, that Weathers took possession under his deed only of the land lying West of the Mickle Koad, that Pittman retained possession and control of the strip of land East of that road, which is the subject of dispute in this case, until he sold and conveyed that with other land to G. W. Hill, and that G. W. Hill and I. G. Hill successively have possessed .and controlled that strip of land since the date of the former’s purchase from Pittman. Itis true that the appellant Weathers •claims that all the land described in the deed to him was intended to be conveyed, and that since the date of his purchase in 1874 he has had possession and control of the strip in dispute. Of the evidence in support .of this contention it suffices to say that it does not satisfactorily explain how such claim can be reconciled with I. G. Hill’s conduct unequivocally indicating a continued assertion by him of a claim of ownership, which claim, as to part at least of the property in dispute, was acqriiesced in by Weathers, as is shown by his offer to purchase from Hill a house located on that land. It appears from the record that the deed to Weathers, in which is the alleged mistaken description, was not recorded until 1886, twelve years after its execution, and seven years after the •execution by Pittman of the deed to G. W. Hill. The record, therefore, did not afford notice to G. W. Hill or to I. G. Hill, .at the dates of their respective purchases, that a portion of the land included in the deeds to them was also described in a former conveyance by Pittman. It further, appears- that the bill in this case was filed within a reasonable time after the discovery of the alleged mistake and of Weathers’ assertion of .a claim to the strip in dispute.
The bill as amended sufficiently avers wherein the mistake •consists and the ground of relief therefrom. It does not, however, aver that a request had been made for the correction of the mistake, and one of the grounds of demurrer sets up this lack of averment as a defect in the bill. The allegations in the bill to the effect that the defendant Weathers had commenced to trespass upon the stip of land in dispute and was actively setting up a claim thereto under his deed show a state of facts sufficient to relieve complainant of the duty of requesting a correction of the mistake before filing the bill; for the bill makes it plain that Weathers had.assumed such an attitude in reference to the matter as to exclude all hoi)e or ex[496] pectation of securing his compliance with such request. The observance of a vain and fruitless ceremony is not by the law made a prerequisite to the assertion of a right. — Robbins v. Battle House Co. 74 Ala. 499.
It. is further urged in behalf of the appellant that a reformation of the deed to him should not be decreed because the effect would be to leave him with twenty-one acres less land than he bought and paid for. The testimony does strongly tend to show that it was understood between Weathers and his vendor that there were at least two hundred acres in the tract intended to be conveyed and that the purchase price was fixed by counting two hundred acres at seven dollars and a half per acre. The result of a survey made not long before the commencement of this suit was to show that the description in the deed to the appellant includes a fraction over two hundred and fourteen acres and that about one hundred and seventy-nine acres would be left after excluding the strip of land in-dispute. It may be that if Weathers had made timely application he would have been entitled to an abatement ol" the purchase-money because of the deficiency in quantity of the land acquired by him under the purchase. — Hodges v. Denny, 86 Ala. 226. It satisfactorily appears, however, that he got the whole of the tract of land which he intended to purchase, that he went into possession and thereafter paid the notes given for the deferred instalments of the purchase-money without claiming any abatement therefrom because of the alleged deficiency, and continued in possession for more than fifteen years without setting up any such claim against his vendor. After the lapse of so long a time, during which the purchaser was in possession of the land and enjoying full opportunities to observe any deficiency in the area which he supposed he had acquired, it must be presumed either that the quantity of land was not regarded as of the essence of the contract or that the objection on account of the deficiency has been waived or adjusted. — Ferson v. Sanger, 1 Wood & M. 147; Farley v. Briant, 32 Me. 483; Grymes v. Sanders, 93 U. S. 62; Davis v. Evans, 62 Ala. 401. The claim, urged now for the first timé, has the appearance of an afterthought suggested to defeat the correction of a mistaken description rather than to secure to the appellant a part of what he thought he had acquired. The position of the ajtpellee in reference to the erroneous description which casts a cloud over his title is very different from that of the appellant as to the alleged deficiency in the area of his land. The former has promptly sought the correction of the mistake against his interest; while the latter, all along enjoying the fullest oppor[497] trinity to see whether he had more or less land than he expected to get, has waited so long without complaint, as to raise up against himself the presumption that he did not regard the-error against him as material or that it'has been satisfacl orily settled. At this late day his complaint that he did not get as much land as he paid for can not avail to enable him to retain the record title to a strip of land which was not understood to-be included in his purchase. As the appellant’s contention on this score would, for the reason stated, have to be rejected,, whether made the basis of an application >for relief or set up merely by way of defense, it is unnecessary to determine whether, in a proper case, such a claim must be asserted by a cross-bill, or could be availed of, by averment in the answer alone, so that when supported by proof the allowance of compensation for the shortage in land would be made a condition to the granting of relief in reference to the erroneous description alleged in the bill.— Woodall v. Kelly, 85 Ala. 368.
It was decreed by the Chancery Court that the strip of land in dispute lying East of said W. D. Mickle road be divested out of said defendant I. T. Weathers and invested in the complainant I. G. Hill. Such direct divestiture of title is not authorized by the statute upon this subject. — Code of 1886, § 3595; Prewitt v. Ashford, 90 Ala. 294. The decree will be here so modified as to direct that said defendant I. T. Weathers shall, before the 15th day of August, 1891, under the supervision of the register, execute a proper deed of conveyance to the complainant, I. G. Hill, of said strip of land lying East of said W. D. Mickle road, and in default' of the execution of such deed on or before the date mentioned, said decree as so modified shall operate \o vest the title to said strip of laud in said complainant as fully as if said conveyance had been made.
With this modification the decree is affirmed.
Modified and affirmed.