Camper v. Rice , 201 Ala. 579 ( 1918 )

Bill filed by appellee, seeking a reformation of a certain deed executed to the appellant on August 19, 1916, upon the theory that the property therein attempted to be conveyed was incorrectly described, as a result of a mutual mistake.

The rule is well established in this state that, in the exercise of this jurisdiction, the court proceeds with utmost caution, as it involves the invasion of a salutary rule of evidence, and that before relief will be granted if must be shown by clear, exact, and satisfactory proof "that the mistake exists; that the writing deviates from the intention and understanding of both parties at the time of its execution." Campbell v. Hatchett, 55 Ala. 551. See, also, Hammer v. Lange,174 Ala. 337, 56 So. 573; Turner v. Kelly, 70 Ala. 85; Guilmartin v. Urquhart, 82 Ala. 570, 1 So. 897; Hertzler v. Stevens, 119 Ala. 337, 24 So. 531; Keith v. Woodruff,136 Ala. 443, 34 So. 911; 3 Mayf. 226, et seq.; 34 Cyc. 915-22.

There is no averment of fraud or inequitable conduct on the part of the respondent, and we are therefore here concerned only with the question of mutuality of mistake.

We further recognize the rule that, in cases of this character, there is not only required very clear proof, but also great particularity of averment, to authorize the reformation of a written contract. Dexter v. Ohlander, 95 Ala. 467,10 So. 527.

We are of the opinion that, while the bill may not be entirely free from criticism when viewed with a critical eye in the light of the strict rules required in cases of this character, yet it in substance has met the requirements of the rule, and was therefore not objectionable as against the assignments of demurrer interposed thereto. The rule is well settled that pleadings are to be construed most strongly against the pleader, yet as was said by this court in Warren v. Crow, 195 Ala. 568, 71 So. 92, the language used should be given a reasonable construction, and the bill of course construed as a whole.

The bill clearly shows the lot intended to be sold, and that intended to be purchased by the respondent; that the property as described in the third paragraph of the bill, and so intended to be sold, was the only lot to which the complainant had a fee-simple title. The bill further shows that this was the only lot complainant offered to sell to the respondent, and was so measured by respondent, or her husband for her, and that this was the lot which respondent understood she had purchased. It is then averred that the description in the deed is erroneous and incorrect; that "through a mistake" the land described in Exhibit B to the bill was incorrectly described.

It is insisted that the expression "through a mistake" should be construed as intended to mean only a mistake of the complainant, and not a mutual mistake of the parties. Standing alone under the rule of construction of pleadings against the pleader, there might be some merit in this insistence, but, as previously stated, all of the averments of the bill are to be considered, and the language used to be given a reasonable construction. When this is done, we think it sufficiently appears, although the word "mutual" was not used, that the mistake here averred was a mistake of both parties at the time of the execution of the deed.

We are therefore of the opinion that the decree overruling the demurrer should be affirmed.

Affirmed.

ANDERSON, C. J., and McCLELLAN and SAYRE, JJ., concur.