Norris v. Smith , 41 Ala. 340 ( 1867 )

JUDGE, J.

The lands described in the bill in this case, were purchased by Jasper J. Norris, the husband of the complainant, and were paid for by Norris, out of his own means. At the time of the intermarriage of Norris with complainant, each had one child by a former marriage; and at the time of the execution of the deed, which is the subject of the suit, two children, the offspring of the intermarriage of Norris with complainant, had been born, and were living. It is averred in the bill, that, on the purchase of the lands from Smith, the husband of complainant “desired that the deed for the lands should convey the title to complainant, in such manner that she and her husband could unite in reconveying the same, at any time they might desire to do so, and make a perfect title the purchaser.” It is not averred that this “ desire” was communicated to the draughtsman of the deed, either before, or at the time of its preparation ; nor is it averred that any instructions were communicated to him as to how the deed should be drawn. It is averred that the deed, as executed, (and such perhaps is its legal effect,) conveys to the complaiaant a separate estate for life only in the lands, with remainder over to the three sets of children above designated ; and that such a conveyance of the lands was not in accordance with the intention of complainant and her husband, but was the result of mistake.

The evidence of McClanahan,the draughtsman of the deed, shows, that he was instructed by the husband of the complainant to draw the deed “ in such manner that the three sets of children above specified should inherit the land “ that he desired that, in the event of his death, the three sets of children should jointly inherit the land.” It is not necessary to inquire whether, by mistake or accident, the deed was so drafted, as that it fails to accomplish the intention of the parties; the relief prayed for was properly refused, for the reason, if no other, that there is a want of correspondence between the allegations of the bill and the evidence. If a case be established by the evidence, it is inconsistent with the allegations of the bill, and there is’ therefore, no error in the decree of the chancellor.—Shepherd’s Digest, 242, § § 4, 5, 6.

Decree affirmed, with costs.

Byrd, J., not sitting.