Smith v. Allen , 102 Ala. 406 ( 1893 )

COLEMAN, J.

The bill was filed to reform a deed of conveyan.ce of land executed by appellant, Smith, to the respondent, Allen. The entire land was conveyed in fee, with covenants of warranty. The bill avers that as to sixty acres of the land sold and conveyed, the understanding and agreement of the parties was, that complainant “was only to convey the surface of” the sixty acres ‘ ‘ and that said minerals and other rights were put in said conveyance or not excepted therefrom through inadvertence or mistake,” and that respondent “knew that complainant did not own said minerals,” “and he did not agree to sell and convey said minerals,” &c. The answer contains positive and specific denials of all the material allegations of the bill. The deed is made an exhibit to the pleadings, audits execution fully proved and admitted. In such cases the burden is on the party complaining of the mistake to overcome the presumption of law that the writing truly expresses the agreement and intention of the parties. “In all cases unless the mistake is admitted it must be proven by clear, exact, and satisfactory evidence.” “Until beyond reasonable controversy the mistake is made to appear, the writing must remain the sole expositor of the intent and agreement of the parties. — Hinton v. Citizens Mutual Ins. Co., 63 Ala. 488; Turner v. Kelly, 70 Ala. 85; Campbell v. Hatchett, 55 Ala. 548; Tyson v. Chestnut, 100 Ala. 571.

The testimony is in irreconcilable conflict. The witnesses for complainant, who testified as being present when the terms of the verbal contract were agreed upon, are himself and the witness Short. These witnesses testify that the terms of the agreement were concluded upon the premises. The witnesses on this point for the respondent are himself and wife, who fix the time and place when the verbal agreement was concluded at respondent’s house. The witness Allen 'Morris tends to corroborate the statement of the respondent to the effect, that on the day he examined the premises with complainant, the witness for the complainant, Short, was not present. The evidence shows that the deed was prepared by a skillful attorney employed for that purpose, and when both parties were preseut. The attorney has.not been examined. The deed remained in the possession of the grantor some days before its acknowledgment. The justice of the peace, who took the acknowledgment and was present when it was delivered, was examined by the respondent. He heard nothing of any incumbrance or exception to be reserved in the conveyance. The declarations testified to, as having been made some years after the execution of the deed, can have but little weight in determining the agreement of the parties when the deed was executed. The complainant has fallen very far short of the measure of proof required, to entitle him to a reformation of the deed as prayed for in his bill.

There is no error in the record, and the decree of the chancery court is affirmed.