Welsh v. Neely

de GRAFFENRIED, J. The complainants, in this proceeding, seek the reformation of a deed upon the ground of mutual mistake. In proceedings of this sort a court of equity will not reform the instrument unless the bill shows, and the evidence -also shows, that the parties to the instrument made an agreement which, through mistake, the writing sought to be reformed does not express.-—Keith, et al. v. Woodruff, 136 Ala. 443, 34 South. 911. In such a case the bill must show what the true contract was, and if reformation is had the decree of the court will simply give effect to the instrument in accordance with the real agreement of the parties. In other words, the decree of the court will simply give effect to the instrument in accordance with the real agreement of the parties. In other words, the decree of the court will simply declare the instrument to be what the parties intended it to be and what it in reality would have been but for the mistake.—Keith, et al. v. Woodruff, supra. 1.- While the allegations of the bill in the instant case might have been somewhat more specific, we think that it shows what the true contract between the parties was [226] and wherein, by mutual mistake, the deed is not expressive of the understanding or agreement. We are therefore of the opinion that the bill of complaint was not subject to demurrer. 2. The evidence discloses that the complainants, when they executed the conveyance, were in possession of 2.44 acres of land, no part of which did they intend to sell to respondent and no part of which did respondent intend to buy from complainants. In other words, we think it clear that, when the deed was executed and delivered, it was not thought by either party that the deed embraced any part of said 2.44 acres of land. Originally complainants were tenants in common with other parties of a 20-acre tract of land. Complainants bought from the other tenants in common 2.44 of this 20-acre tract. This 2.44-acre tract was, in the deed to complainants, appropriately described so that its boundaries were easily ascertainable. Subsequently respondent entered into negotiations for the purchase of the remainder of said 20-acre tract, viz., 17.56 acres, from all of the tenants in common of the same. A deed was prepared, and all of the tenants in common were expected to execute it. All of the tenants in common, except complainants, did, in fact, execute and deliver the deed. In this deed the 17.56 acres were by a mistake misdescribed. Subsequently complainants conveyed their interest in said 17.56 acres to respondent. The deed which was signed and delivered by complainants to their undivided interest in said 17.56 acres followed the description which was given to the land in the deed which had already been made to respondents by the other tenants in common of said land, and, of course, the same error in the description appeared. By this error the deed from complainants to respondent was made to convey not only their undivided interest in [227] said 17.56 acres—all that they intended by said conveyance to sell and all that respondent intended to -buy— bnt also a part of the 2.44 acres which complainants alone owned and were alone possessed of. It was this error which this bill was filed to correct, and we think it clear that the chancellor committed no error in granting to the complainants the relief which they sought by their bill. The decree of the court below is affirmed. Affirmed. Anderson, C. J., and McClellan and Sayre, JJ., concur.