Bryan v. Hendrix

STONE, J. The bill in the present record alleges that in the deed of appellant to Sherman, dated March 2, 1864, a mistake was made in the description of the land conveyed; and the main object of the original bill was to reform the deed. The mistake is fully and satisfactorily proved, and we think this case must be treated, in the further consideration of it, as if the deed had been originally framed and executed, so as to convey the lands by their right numbers. 1 Brick. Dig. 685, § 664. In fact, we understand it to be conceded that the mistake charged in the bill was made in the draught of the deed. 1. The reformation in this cause is resisted on the alleged ground that Bryan was paid for the land in Confederate money, which he received unwillingly; and that he was induced to take it, partly by threats made, and partly by promise that such Confederate money should be, by the payer, redeemed in gold. This presents the disputed question of fact, on which the decision of this case must depend. On this question of fact, the testimony of the witnesses on the several sides stands so diametrically opposed, as to be incapable of reconciliation. The numbers are about equal, and in weighing the evidence, we find nothing to authorize us to accord greater credibility or weight to appellant’s testimony than to that given on the other side. To justify a reversal of the chancellor’s 'finding on facts, our minds must be satisfied that he erred. This is but another application of a cardinal principle in this court, that error will not be presumed, but must be affirmatively shown by the record.—See Rather v. Danley, at the present term, for a correct statement of the rule by which we propose to be governed; see, also, 1 Brick. Dig. 781, §§ 118, 119, 120. 2. We think, however, that the case of appellee is much stronger than that shown by the principle above stated. Appellant, holding the evidence of Sherman’s indebtedness for the purchase money, while Sherman held only his bond or obligation to make title vrhen the purchase money should be paid, executed a deed of conveyance, surrendered the ■evidence of debt, and, so far as we are informed, asserted no claim to the money or the land for seven or eight years. We [390] think these combined facts presented a very strong prima facie case, which the appellant was required to overcome,, before he could claim relief in the court below. 3. We do not think the alleged variance between the allegations and proof is fatal to the relief prayed by the bill. The deed, executed in 1864, is made an exhibit to the bill, and no disputed or disputable averment in the pleadings • made it necessary to inquire whether the contract was made in 1860, or in 1864. No legal result was at all influenced by the date of the original purchase. No question of contestation was dependent thereon, or in the least affected thereby. The error could not have misled the defendant,, did not change the character or measure of proof, or in the slightest degree vary, modify, or enlarge the relief to which, complainant would be entitled. Under such circumstances, a mistake in the statement of a date, when no date need have been given, is, at most, a harmless variance.—Hartwell v. Whitman, 36 Ala. 712; Gilchrist v. Gilmer, 9 Ala. 985;. Eldridge v. Turner, 11 Ala. 1050; Chapman v. Hamilton, 19 Ala. 121; McLane v. Riddle, ib. 180; Montgomery v. Girhan, 24 Ala, 568 ; Lanier v. Hill, 25 Ala. 554; David v. David, 27 Ala. 222; Morrow v. Tumey, 35 Ala. 131. We find no error in the record, and the decree of the-chancellor is affirmed.