Peacock v. Bethea

DOWDELL, J. The purpose of the bill in this case is to correct a mutual hiistake of the parties to the deed in the conveyance of land, and accordingly to reform the deed. To this end, upon timely application, the jurisdiction of a court of equity is beyond question. — Houston v. Faul, 86 Ala. 232, 5 South. 433, and authorities there cited. In the present bill it is shown that all necessary parties were joined, either as defendants or complainants. The facts averred in the bill dispensed with any necessity for a prior demand on the respondent for the correction of the alleged mistake and reformation of the conveyance. — Weathers v. Hill, 92 Ala. 492, 9 South. 412. It was not necessary for the complainants to aver in terms that they were free from negligence in the matter, when the facts stated in the bill show that' no negligence was imputable to them. — Houston v. Faul, supra. The facts here stated, we think, very clearly show that the complainants were free from negligence. We are clearly of the opinion that the complainants were not guilty of laches in the filing of the present bill. [146] What constitutes timely application is largely within the sound discretion of the court. — Harris v. Ivey, 114 Ala. 363, 21 South. 422. , The present bill cannot be considered as one for the cancellation and recission of a contract. Prom the opinion of the chancellor accompanying his decree this Seems to fiave been his theory of the case. The question, .therefore, of restoring the parties to their status quo is not. involved. The bill is .clear and definite in its averments of the mutual mistake made, .and simply seeks the correction of such mistake, although the complainants affirmatively submit themselves to the jurisdiction of the court. The question is not one of a recission of a contract and restoring the parties to a former status, but simply-.one of correcting a mutual mistake in the raemorial or writing,. and thereby placing and. preserving, so fas. as the written memorial is concerned, the parties in that status which they intended. The bill, as amended, was not subjéct to any of the grounds of the demurrer. • The chancellor erred in sustaining the demurrer. His decree, therefore, will be reversed, and one here rendered overruling the demurrer. Reversed and rendered. Haralson, Denson, and McClellan, JJ., concur. Tyson, C. J., and Simpson and Anderson, JJ., dissent.