Burgin v. Sugg , 205 Ala. 664 ( 1921 )

This is the second appeal in this case. 204 Ala. 270,85 So. 533. We think that the bill as last amended shows such a mutual mistake and with sufficient particularity as to give it equity as for a reformation of the contract as made between D. F. Sugg and the respondent Burgin.

The bill does not, of course, state such a complication of accounts, or other facts, that would give it equity as an independent bill for an accounting, but the accounting sought is a mere incident to the reformation and performance or enforcement of the contract.

We do not think that the bill is defective as for a misjoinder of D. F. Sugg and his sister Pauline because of no community of interest, as they are both interested in the result. D. F. Sugg was the owner of the claim released against the Cook estate which formed in part the consideration for the undertaking to satisfy the mortgage against his sister, and she is, of course, interested in having said mortgage satisfied. D. F. Sugg is also interested in the decree in case respondent fails to satisfy the mortgage. Community of interest as required for the maintenance of a joint action does not necessarily mean equality or identity of interest. Winter-Loeb Co. v. Boykin, 203 Ala. 187, 82 So. 437.

The remedy at law in this case is not complete and adequate; for, unless the contract is reformed so as to apply to an existing mortgage — that is, the one given by Pauline Sugg to Vann and subsequently assigned to Brown — there can be no recovery for a breach of same as it provides for the payment and satisfaction of a mortgage which does not and did not exist.

The decree of the circuit court is affirmed.

Affirmed.

SAYRE, GARDNER, and MILLER, JJ., concur.