
    Weathers v. Hill.
    
      Bill in Equity for Reformation of Deed for Land.
    
    1. Reformation of deed by correcting mistake in description of land, at instance, of subsequent purchaser; prior to request for correction .- — -A court o+‘equity will reform and partially cancel a conveyance of lands, by -correcting a mistake in the description, at the instance oí a subsequent purchaser of the portion erroneously included, on clear and distinct proof of the mistake, and reasonable diligence on the part of the purchaser in discovering and applying for the correction of the mistake; a^d it is not necessary to allege a prior request for the correction of the mistake, when facts are stated which show that it would have been a vain and useless formality.
    2. Same; resulting deficiency to first purchaser. — The first purchaser, whose conveyance included a tract of land not within the contemplation of the parties, can not resist its reformation at the instance of a subsequent purchaser of t.hatltract, on the ground that a deficiency would result in the number of acres in his own tract, when it appears that he got the tract for which he contracted, paid the purchase-money in full, never asked an abatement, and continued in possession for fifteen years without complaint, until the subsequent purchaser filed his bill to correct the mistake.
    3. Decree resting or divesting title, to lands. — Under a bill for the reformation and partal cancellation of a deed, at the instance of a subsequent purchaser of a part of the tract included by mistake, a decree for the complainant should not directly declare the title divested out of the defendant and vested in him (Code, § 3595),but should require the defendant to execute a proper conveyance under the supervision of the register, and declare that, in default thereof, the decree shall operate to vest the title.
    Appeal from the Chancery Court of Randolph.
    Heard before the Hon. S. K. McSpadden.
    The bill in this ease was filed on the-day of-, 18 — , by the appellee, I. G. Hill, against the appellant, J. T. Weathers. The prayer of the bill was that a deed made by one Pittman and wife to the respondent might be reformed, and the same removed as a cloud on the complainant’s title. The bill alleged, and it was proved, that in October’, 1874, said Pittman and wife sold to the respondant, J. T. Weathers, a certain tract of land; that in making the conveyance thereto, the draughtsman made a mistake in the description of the lands intended to be conveyed by it; that it was intended to convey the lands of Pittman which lay west of the W. I). Mickel road, while in fact the conveyance was made to include also the lands east of the W. H. Mickel road. It was also averred in the amended bill that t here was a mutual understanding and agreement between Weathers and the said Pittman, that the former bought only-such lands as lay west of the W. JD. Mickel road. The bill further averred, and it was proved, that in August, 1879, said Pittman and his wife conveyed all of said land east of the W. D. Mickel road to George W. Hill; that in December, 1881, said George W. IJill and wife conveyed to the complainant, I. G. Hill, the lands so bought by G. W. Hill from Pittman; that in his deed the lands are described just as they are in the deed from Pittman and-wife to G. W. Hill; that in December, 1888, the complainant discovered that a mistake had been made in the description of the lands conveyed in. the deed from Pittman and wife to George W. Hill, and also from Pittman and wife to the respondent, .and that to correct this mistake, said Pittman and wife executed to the complainant a new deed in which the lands purchased by him from G. W. Hill are properly described, a portion of them being the lands lying east of the W. D. Mickel road. The principal contention upon which respondent rests the right to defeat the relief prayed for by the complainant, is shown in the opinion. There was a demurrer to the amended bill, and a motion was made to dismiss same for want of equity, both of which were overruled. On the final hearing, upon the pleadings and proof, the chancellor decreed that the complainant was entitled to the relief prayed for, and the substance of the decree will be found in the opinion. The respondent brings this appeal, and assigns this decree as .error.
    James Aiken, and R. S. Pate, for appellant.
    The mistake must be mutual. — Guilmartin v. Urquhart, 82 Ala. 570; Turner v. Kelly,10 Ala. 85; 55 Ala. 548; 5 Am. St. Rep. 816. The appellants insist that the evidence produced by the appellee is totally insufficient to establish a mutual mistake, under the rules of law in such cases; for the evidence must be clear, positive and convincing.— Guilmartin v. Urquhart, 82 Ala. 570; Turner v. Kelly, 10 Ala, 85; Hinton v. ins. Go., 63 Ala. 488; 1 Brick. Digest, p. 85, § 664.
    N. D. Disnson, contra.
    
    I. G. Hill, being the derivative purchaser, can maintain the bill.— Thompson v. Hudspeth, 46 Ala. 470. The demurrers were properly overruled. — Battle House Go. v. Bobbins, 74 Ala. 499.
   WALKER, J.-

It is well settled that the reformation df a conveyance, or other written instrument, because of an alleged mistake therein, Will not be decreed unless such mistake is fully and satisfactorily shown by clear and distinct proof. Marsh v. Marsh, 74 Ala. 418; Guilmartin v. Urquhart, 82 Ala. 570; 1 Brickell’s Digest, 358. Though much of what was .said by the witnesses in this case must be discarded as irrelevant and incompetent evidence, and though it is impossible to reconcile the conflicts in the testimony, still, after carefully going through the evidencie, and sifting out such of it as is illegal, and rejecting what is obviously unsatisfactory and untrustworthy, we can not avoid the conclusion that in the drafting of the deed of Pittman and wife to Weathers a mistake was made in including that paid of the land which was also included in the descriptions in the conveyances subsequently made to G. W. Hill and to I. G. Hill respectively. The deed in question was written by Mr. Handley, who was a disinterested witness of what occurred at the time of the sale and conveyance of the land. It clearly appears from his testimony that the understanding of both Pittman and Weathers was that the deed was to cover only that part of the former’s land lying West of what was known as the W. D. Mickle road. The witness makes plain how he fell into the error in framing a description of the land intended to be conveyed. The version of the transaction given by this witness is strongly corroborated by the preponderance of the testimony to the effect, that Weathers took possession under his deed only of the land lying West of the Mickle Koad, that Pittman retained possession and control of the strip of land East of that road, which is the subject of dispute in this case, until he sold and conveyed that with other land to G. W. Hill, and that G. W. Hill and I. G. Hill successively have possessed .and controlled that strip of land since the date of the former’s purchase from Pittman. Itis true that the appellant Weathers •claims that all the land described in the deed to him was intended to be conveyed, and that since the date of his purchase in 1874 he has had possession and control of the strip in dispute. Of the evidence in support .of this contention it suffices to say that it does not satisfactorily explain how such claim can be reconciled with I. G. Hill’s conduct unequivocally indicating a continued assertion by him of a claim of ownership, which claim, as to part at least of the property in dispute, was acqriiesced in by Weathers, as is shown by his offer to purchase from Hill a house located on that land. It appears from the record that the deed to Weathers, in which is the alleged mistaken description, was not recorded until 1886, twelve years after its execution, and seven years after the •execution by Pittman of the deed to G. W. Hill. The record, therefore, did not afford notice to G. W. Hill or to I. G. Hill, .at the dates of their respective purchases, that a portion of the land included in the deeds to them was also described in a former conveyance by Pittman. It further, appears- that the bill in this case was filed within a reasonable time after the discovery of the alleged mistake and of Weathers’ assertion of .a claim to the strip in dispute.

The bill as amended sufficiently avers wherein the mistake •consists and the ground of relief therefrom. It does not, however, aver that a request had been made for the correction of the mistake, and one of the grounds of demurrer sets up this lack of averment as a defect in the bill. The allegations in the bill to the effect that the defendant Weathers had commenced to trespass upon the stip of land in dispute and was actively setting up a claim thereto under his deed show a state of facts sufficient to relieve complainant of the duty of requesting a correction of the mistake before filing the bill; for the bill makes it plain that Weathers had.assumed such an attitude in reference to the matter as to exclude all hoi)e or expectation of securing his compliance with such request. The observance of a vain and fruitless ceremony is not by the law made a prerequisite to the assertion of a right. — Robbins v. Battle House Co. 74 Ala. 499.

It. is further urged in behalf of the appellant that a reformation of the deed to him should not be decreed because the effect would be to leave him with twenty-one acres less land than he bought and paid for. The testimony does strongly tend to show that it was understood between Weathers and his vendor that there were at least two hundred acres in the tract intended to be conveyed and that the purchase price was fixed by counting two hundred acres at seven dollars and a half per acre. The result of a survey made not long before the commencement of this suit was to show that the description in the deed to the appellant includes a fraction over two hundred and fourteen acres and that about one hundred and seventy-nine acres would be left after excluding the strip of land in-dispute. It may be that if Weathers had made timely application he would have been entitled to an abatement ol" the purchase-money because of the deficiency in quantity of the land acquired by him under the purchase. — Hodges v. Denny, 86 Ala. 226. It satisfactorily appears, however, that he got the whole of the tract of land which he intended to purchase, that he went into possession and thereafter paid the notes given for the deferred instalments of the purchase-money without claiming any abatement therefrom because of the alleged deficiency, and continued in possession for more than fifteen years without setting up any such claim against his vendor. After the lapse of so long a time, during which the purchaser was in possession of the land and enjoying full opportunities to observe any deficiency in the area which he supposed he had acquired, it must be presumed either that the quantity of land was not regarded as of the essence of the contract or that the objection on account of the deficiency has been waived or adjusted. — Ferson v. Sanger, 1 Wood & M. 147; Farley v. Briant, 32 Me. 483; Grymes v. Sanders, 93 U. S. 62; Davis v. Evans, 62 Ala. 401. The claim, urged now for the first timé, has the appearance of an afterthought suggested to defeat the correction of a mistaken description rather than to secure to the appellant a part of what he thought he had acquired. The position of the ajtpellee in reference to the erroneous description which casts a cloud over his title is very different from that of the appellant as to the alleged deficiency in the area of his land. The former has promptly sought the correction of the mistake against his interest; while the latter, all along enjoying the fullest opportrinity to see whether he had more or less land than he expected to get, has waited so long without complaint, as to raise up against himself the presumption that he did not regard the-error against him as material or that it'has been satisfacl orily settled. At this late day his complaint that he did not get as much land as he paid for can not avail to enable him to retain the record title to a strip of land which was not understood to-be included in his purchase. As the appellant’s contention on this score would, for the reason stated, have to be rejected,, whether made the basis of an application >for relief or set up merely by way of defense, it is unnecessary to determine whether, in a proper case, such a claim must be asserted by a cross-bill, or could be availed of, by averment in the answer alone, so that when supported by proof the allowance of compensation for the shortage in land would be made a condition to the granting of relief in reference to the erroneous description alleged in the bill.— Woodall v. Kelly, 85 Ala. 368.

It was decreed by the Chancery Court that the strip of land in dispute lying East of said W. D. Mickle road be divested out of said defendant I. T. Weathers and invested in the complainant I. G. Hill. Such direct divestiture of title is not authorized by the statute upon this subject. — Code of 1886, § 3595; Prewitt v. Ashford, 90 Ala. 294. The decree will be here so modified as to direct that said defendant I. T. Weathers shall, before the 15th day of August, 1891, under the supervision of the register, execute a proper deed of conveyance to the complainant, I. G. Hill, of said strip of land lying East of said W. D. Mickle road, and in default' of the execution of such deed on or before the date mentioned, said decree as so modified shall operate \o vest the title to said strip of laud in said complainant as fully as if said conveyance had been made.

With this modification the decree is affirmed.

Modified and affirmed.  