Green v. Casey , 70 Ala. 417 ( 1881 )

BBICKELL, C. J.

The bill is filed for the purpose of enforcing the lien of a vendor on lands for the payment of the purchase-money. The purchase-money is secured by promissory note, which it is averred has been transferred by assignment to the complainant. The note is exhibited, and has an assignment in writing; and the assignor is made a party defendant, submitting to a decree pro confesso. If the answer is to be regarded as putting in issue the fact of the transfer and assignment of the note, the admissions of the assignor, involved in the decree pro oonfesso, are sufficient to establish it. The assignment, on its face, purports to have been made for value; and the averment of the bill is, that it was founded on a valuable consideration. The decree pro oonfesso involves an admission of the truth of the recital in the assignment, and of the averment of the bill; and if this were a matter the maker of the note could litigate,- the admission would prove the fact, in the absence of all countervailing evidence.—Nix v. Winter, 35 Ala. 309; McLane v. Riddle, 19 Ala. 180. Of course, if there was a claim in opposition to, or in priority of the assignment, there would be a necessity to establish the_ assignment by other evidence than the admissions of the assignor; and such admissions, made after the assignment,, or after the accrual of the opposing right, would be inadmissible.

2. The answer, so far as it sets up an additional consideration for the note than that stated in the bill, and the failure of such consideration, is not responsive. It is introductive of new matter, and the burden of proving it, if material to the defense, rested upon the appellant, Green.—Forrest v. Robinson, 2 Ala. 215.

3. ' The cross-bill claims, first, a reformation of the deed conveying the lands, by incorporating therein a conveyance of an easement to overflow the lands of Gordon, and a warranty of the title to the easement; second, relief against the payment of the purchase-money, because the vendor was without right or title to the easement. The general principle, prevailing in courts of equity and courts of law, is, that contracts or agreements between parties, reduced to writing, deliberately executed or accepted, not bearing any evidence of incompleteness, are presumed to comprise the whole meaning, purposes, and contract of the parties. Parol evidence is not admissible, to add to, alter, or vary the terms of such a contract. But, in equity, if it appears that by fraud, or by inadvertence, or by mistake, as it is usually termed, the writing contains more or less than the parties intended ; or that it varies from their intention, by expressing something materially different, a court of equity will rectify it, and conform it to the true agreement. In such cases, the mistake in the writing must be plainly averred in pleading, and, if not admitted, must be clearly made out by convincing evidence. — 1 Story’s Eq. § 152; 1 Brick. Digest, 685, § 664.

4. Whether the cross-bill is sufficient in its averments— whether it can be fairly collected from it that the parties intended an introduction into the deed óf a grant or conveyance of the easement, a warranty of title to it, and that from inadvertence or ignorance it was omitted — is not material. The cause was heard on pleadings and evidence, and there was no evidence offered to support the allegations of the bill. The dismissal of it was unavoidable; and if the chancellor erred in sustaining the demurrer to it, the decree of dismissal, right in itself, would be erroneous only because rendered for a wrong reason.

Affirmed.