Fuller v. Hawkins

Riddick, J. (after stating the facts.) The rule that a court of equity has the power to correct mistakes in deeds and mortgages, so as to make them conform to the intention of the parties in executing the same, is well settled. Simpson v. Montgomery, 25 Ark. 370; Felton v. Leigh, 48 Ark. 498; Knight v. Glasscock, 51 Ark. 390. “Whenever,” says Mr. Jones, “there has been a material omission or mistake in the deed, so that it fails to express what the parties intended, a court of equity may, as between the parties, reform and correct it in accordance with the transaction as it was actually agreed upon.” Jones on Mort. sec. 97. Courts will not grant this relief unless the intention of the parties and the mistake in executing the deed are clearly established. Rector v. Collins, 46 Ark. 174; Carnall v. Wilson, 14 Ark. 487; Hervey v. Savery, 48 Ia. 313; Alexander v. Caldwell, 55 Ala. 517. The complaint in this case does not directly allege, as it should do, that Hawkins agreed to execute a mortg-age for 75 per cent, of the invoice price of the goods, and that, by mutual mistake, the mortgage was executed for a less sum. It alleges that the mortgage was, by a mistake in addition, drawn for $919.27, the same being 75 per cent, of $1,225.61, the supposed invoice price of the stock of goods and merchandise, when, by the terms of the contract, said mortgage should have been drawn for $1,090.25, without directly alleging what the contract was, or that Hawkins agreed to give the mortgage for a larger sum. But this, at most, was only a formal defect, for which the remedy was a motion for an order requiring the plaintiff to make his allegations more definite and certain. So far as we can determine from the complaint, the property mortgaged was owned by A. D. Hawkins, the husband, and there is no question here about the right to compel a married woman to reform her deed. Though it may be defective in some respects, the complaint states substantially a good cause of action against A. D. Hawkins. As to him the judgment of the circuit court is reversed, and the cause remanded, with an order that the demurrer be overruled.