Reeves v. Thompson

The bill as originally framed sought to require the mortgagor to select which of lots 37 or 38, he intended by the general description of "one lot located in West End Manor," and to reform the mortgage so as to describe it properly.

By an amendment, the bill alleged that it was the mutual intention of both parties to embrace in the mortgage both of the lots, and that they each were only twenty-five feet frontage adjacent to each other, and intended to be the "one lot" described in the mortgage, and sought to reform the mortgage by so describing the property. This amendment was alleged to be an alternative of that sought in the bill as originally framed.

It also alleged that the mortgage contained personal property which the mortgagee had removed and refuses to disclose its location. It sought a discovery, by interrogatories separately filed, and a foreclosure of the mortgage.

Regardless of those aspects in the alternative which sought a reformation of the description of the real property, the bill has equity to foreclose the mortgage even though it be treated as a chattel mortgage, because of the alleged ambiguity in the description of the realty. Ex parte Logan, 185 Ala. 525,64 So. 570, 51 L.R.A. (N.S.) 1068, Ann. Cas. 1916C, 405; Humes v. Scott, 130 Ala. 281, 30 So. 788; Bolling v. Vandiver,91 Ala, 375, 8 So. 290; Tyson v. Weber, 81 Ala. 470, 2 So. 901; Whitehead v. Lane, etc., Co., 72 Ala. 39; 11 Corpus Juris 719.

To support the aspect for reformation there must be shown to have been a mutual agreement to embrace certain property, but that some of it was omitted, or it was incorrectly described, by mutual mistake, or by the mistake of one party and fraud of the other (or the equivalent of fraud). Section 6825, Code; Gallilee Baptist Church v. Pallilla, 219 Ala. 683, 123 So. 210; Copeland v. Keller, 221 Ala. 533, 129 So. 571; Cobern v. Foshee, 221 Ala. 301, 128 So. 779; West End Savings Bank v. Goodwin, 223 Ala. 185, 135 So. 161.

"Where the mistake of the parties in the sale or leasing of property goes to the identity of the property itself, reformation will be denied although the contract may be rescinded, since there was no meeting of the minds of the parties." 117 Am. St. Rep. 242, note; 23 Rawle C. L. 335; Page v. Higgins, 150 Mass. 27, 22 N.E. 63, 5 L.R.A. 152.

"A court of equity can reform an instrument only for the purpose of having it express the understanding and agreement of the parties." 117 Am. St. Rep. 230, note.

That aspect of the bill, which seeks to require the mortgagee to select the lot he intended by the description and to reform the mortgage pursuant to such selection, lacks the elements required of mutual agreement as to the lot intended, and that the description of the lot in the mortgage by mistake failed to specify that which the parties agreed that it should contain.

And that aspect which seeks to reform the mortgage by embracing both lots may be barely sufficient to come within the requirements (not now decided, as it will probably be amended so as to remove any claim of insufficiency).

But that aspect which seeks a foreclosure of the mortgage, and discovery of the location of the chattels, seems to be sufficient as against any ground of demurrer assigned.

The demurrers were addressed to the bill as a whole, and not to its various aspects, separately. Our latest cases are to the effect that when so framed, if any aspect is not subject to such demurrer, it is properly overruled. Wood v. Estes (Ala. Sup.) 139 So. 331;¹ American-Traders' Nat. Bank v. Henderson,222 Ala. 426, 133 So. 36; Breeding v. Ransom, 220 Ala. 82,123 So. 899; McMillan v. McMillan, 218 Ala. 559, 119 So. 676; Davis v. Anderson, 218 Ala. 557, 119 So. 670, and citations.

The court was therefore not in error in overruling the demurrers as framed.

Affirmed.

ANDERSON, C. J., and GARDNER, THOMAS, and BROWN, JJ., concur.

BOULDIN, J., concurs in the result.

KNIGHT, J, not sitting.

¹ 224 Ala. 140.