Gomez v. Gomez , 155 Ala. 158 ( 1908 )

HARALSON, J.

Section 184 of the Code of 1896 reads as follows: “Mistake in Description of Lands Sold under Order of Probate Court; How Corrected.— When a mistake has been made in the description of lands of a decedent sold in good faith under an order of the probate court, either in the petition, order, or other proceedings, the court ordering the sale has authority, on the written application of the purchaser, or his heirs or personal representatives, or any person' holding under him, verified by affidavit, to correct such mistake. The application must contain a correct description of the lands sold, and must state the facts, and the names, ages and places of residence of the personal representatives and heirs or devisees of such decedent, if known, and if there be no personal representative, that fact must be stated; and, upon the filing of such application, the court must appoint a day for the hearing, of which, and of the nature of the application, notice must be given, by personal service, to the personal representative of such decedent, and such of his heirs as are of age, and are of sound mind, if residents of the state, at least twenty days before the day appointed for the hearing, and also by publication, once a week for three successive weeks, in some newspaper published in the county, or if none is published therein, in a newspaper published nearest to the courthouse thereof. If there is no personal representative of the estate of such decedent, the court must appoint an administrator ad litem to represent the estate in such proceedings; and the court must also appoint a guardian ad litem for such of the heirs or devisees as are under the age of twenty-one years, or are of unsound mind.”

Section 185 of the Code of 1896 is: “Decree on Such Application. — If, upon the hearing, the court is satisfied from the evidence adduced, that the sale of such lands was made in good faith, and that a mistake was made in the description of the lands sold, as stated in the application,’ a decree must be made and entered, correcting the mistake; and if the purchase money has been fully paid, and a deed executed, the court must order the personal representative, or, if there be none, the administrator ad litem, to execute to the party making the application a new deed, conveying to him the lands according to the description as corrected.”

The demurrer to the petition was on seven grounds, only two of which are insisted on in argument, covering substantially others. The first is, in substance, as stated by defendant, that there has been no advertisement of the additional lot of land, 100 feet by 45 feet, adjoining the lot of land to which petitioner received a deed, which said additional lot 100 feet by 45 feet is now sought by petitioner to be conveyed to her. Second, “that no testimony has been taken as in chancery cases showing the necessity for the sale of the lot now sought by petitioner.”

The demurrer Avas sustained, and the petition was dismissed out of the court, at the cost of the petitioner. The petitioner appeals to reverse that order.

The petition was filed under said section 184 of the Code of 1896. The petition alleges substantially all the facts required by the statute, and as to these, there is no dispute. The demurrer admits them.

The jurisdiction of the probate court as conferred by said statute is analogous, as Ave have decided, to that possessed by courts of chancery to reform Avritten instruments under equity of reformation and re-execution. The jurisdiction of equity, as held, has, in this state, been enlarged by statute, so as to authorize the reformation of administrators’ deeds, made under the authority of the probate court, so as to correct misdescriptions of lands conveyed. — Brown v. Williams, 87 Ala. 354, 6 South. Ill; Ganey v. Sikes, 84 Ala. 348, 4 South. 869; Id., 76 Ala. 421.

In the case of Brown v. Williams, supra, it was said: “The legal effect of such a proceeding, however, we repeat is only to accomplish a single purpose. It only corrects the misdescription in the lands sold and conveyed, and places the purchaser, or applicant holding under him, in the same situation he would have been had the correct description been originally inserted in the petition, the order of sale, and the administrator’s deed.”

After stating the foregoing proposition, in further construction of said section, the opinion of the court proceeds: (The statute) “authorizes the probate court to correct any such mistake in the description of lands sold under its order, ‘either in the petition, order or other proceedings,’ under like circumstances provided for by section 2128 of the Code of 1867. It also states the requisite contents of the application, and provides for notice to the heirs or devisees of the decedent, as well as to his personal representative, and for the appointment, in a proper emergency, of an administrator ad litem to represent the estate, as well as a guardian ad litem to represent the minor heirs.” Code 1886, § 2129; Code 1896, § 184.

It was added, that “the whole purpose of such proceeding is to correct, by reformation, a mistake in the description of the lands sold, and to authorize such rectification of error by the execution of a new deed, conveying to the purchaser, or appellant, ‘the lands according to the description as corrected.’ * * * It merely reforms the corrected evidence, so as to make it speak the truth as to the real contract. The conveyance is only made effective by applying it to the property sold by one party and bought by the other, in accordance with the original and mutual intention of the contracting parties.”

In other respects the validity of the sale is unaffected. If the sale is void for want of proper jurisdictional aver-ments in the petition, such as that the lands belonged to minors, or persons of unsound mind, and the order of sale was made without taking evidence as in chancery cases, showing the necessity of the sale, or any other grounds than inaccuracy in the description of the lands, it is void still, notwithstanding the action of the court in making the correction of this particular error or mistake. All such questions are left open, and the validity of the sale may be attacked on any other ground than error in the description of the lands.- — Brown v. Williams, supra.

The petition shows, that on the day and at the time of the sale petitioner in good faith purchased the entire lot of 145 feet by 45 feet, for $1,475, which was the full value of the same; that in good faith, she paid all the purchase money in cash to the administrator, believing that she was purchasing the whole of said lot, and would get a deed to the same; that at said sale the auctioner who conducted the sale, publicly announced, that there was an error in the advertisement for the sale of said property in the description of the lot, stating in what the error consisted, but that the administrator was selling, and the purchaser would get a deed to, the whole lot, and petitioner bid for and purchased said lot under such representation, and that said sale was confirmed when reported, and the administrator made her a deed with the alleged misdescription therein; that the administrator put her in possession of the whole of said lot, and she proceeded to erect three new buildings thereon; and not until recently, did she discover the inaccuracy or mistake in the description of the same in the proceedings of the court and the administrator’s deed to her. It is under these admitted and undisputed circumstan ces, that she files this petition seeking an order and decree that the mistake in the description of said lot of land be corrected in the administrator’s petition for the sale of the same, in the decree of sale, in the report of .sale and decree confirming the same, and directing the administrator ad litem to execute to her a new deed conveying to her the said lot of land according to the description as corrected, agreeably to the provisions of said section 185 of the Code of 1896, etc.

It occurs to us, upon proof of the facts alleged, that the prayer of said petition should be granted. Otherwise, irreparable injury will be sustained by petitioner, and a glaring injustice done her, and she will acquire only a fraction of the property really sold, when she paid for the entire lot in cash, after being assured that she had acquired by the pui^chase, the entire lot. It was just such a miscarriage of justice, that said section of the Code was intended to prevent, and which equity and justice and the law abhor.

The decree of the court below must be reversed, and one will be here rendered overruling the demuurrer to the petition.

Reversed and rendered.

Tyson, C. J., and Simpson and Denson, JJ., concur.