
    Patterson, et al. v. Hannan, et al.
    
    
      Bill to Reform Deed.
    
    (Decided March 2nd, 1907.
    43 So. Rep. 192.)
    1. Reformation of Instruments; Deeds; Evidence. — In a suit to reform the description for mistake in a deed the burden is on the complainant to establish the mistake by clear and convincing proof.
    2. Same; Evidence; Findings.- — Evidence in this case stated and examined and held to show that the description describing the south boundary of the land conveyed as extending to the center of a certain street instead of to the street was a mistake in fact.
    Appeal fiom Mobile Chancery Court.
    Heard before Hon. Thomas H. Smith.
    Bill by Patrick C. Hannan and others against B. J. Paterson and others. From a judgment from complainants, defendants appeal.
    Affirmed.
    
      Inge & Armbrecht, for appellant.
    Until beyond reasonable controversy the mistake is made to appear, the writing must remain the sole expositor of the intent and agreement of the parties. — Smith v. Allen, 102 Ala. 408; Hertsler, Jr. v. Stevens, 114 Ala. 337; Hinton v. Gits. Mut. Ins. Go., 63 Ala. 488; Turner v. Kelly, 70 Ala. 85; Campbell v. Hatchett, 55 Ala. 548; Tyson v. Hatchett, 100 Ala. 52. The burden is on the complainant to show by evidence that is clear, exact, convincing and satisfactory that the written instrument does not truly contain the agreement of the parties. — Trapp v. Moore, 21 Ala. 697; Guilmartin v. Urquhart, 82 Ala. 570; Orlando v. Dexter, 87 Ala. 576; Burnell v. Morris, 106 Ala. 349; Mitchell v. Capital City Ins. Co., 110 Ala. 583; Moore v. Tate, 114 Ala. 584; 2 Pomeroys Equity Jurisprudence Section 859; Storeys Equity Jurisprudence (12th Ed.) Section 157; Campbell v. Hachett, 55 Ala. 548.
    L. H. & E. W. Faith, for appellee.
    The presumption is that the parties intention was to convey the land they own, so the deeds, option and letter were admissible in evidence for the purpóse of aiding the court in arriving at the intention of the party as to what lands were being-bought and sold. — Sledge v. Scott, 56 Ala. 202; Chambers v. Pingstall, 69 Ala. 140. Books of account kept by the deceased clerk, and all other entries or memoranda made in the course of business or duty, by any one who would at the time have been a competent witness to the fact which he registered are admissible evidence. —Bank v. Planctt, 37 Ala. 226; Batre v. Simpson, 4 Ala. 305; Lily v. Larkin, 66 Ala. 120; Elliott v. Dykes, 78 Ala. 157; Sands -v. Hamil, 108 Ala. 624; Section 1809 Code 1896.
   SIMPSON, J.

The bill in this case was filed by the appellees (Complainants) for the purpose of having reformed a deed made by Hannan, Deegan, and Allen to the appellants, dated March 30, 1900. Said deed conveyed certain property in Mobile, Ala., described thei ein as bounded “on the north by Palmetto street, on the east by the channel of Mobile river, on. the south by the line of the center or middle of Charleston street, and on the west by Water street.” The defendants never got possession of that part of said Charleston street between its northern limit and the center of said street, it being held adversely by other parties; and they instituted a suit in the city court at Mobile against appellees (complainants) to recover- damages for breach of warranty in said deed as to said piece of land. The bill in this case was filed to enjoin said suit and to reform said deed, so as to describe said property therein mentioned as bounded “on the south by Charleston street,” in place of the “center or middle of Charleston street,” claiming that the, description of said southern boundary is incorrect as it appears in the deed, and that it occurred by a mistake of the scrivener who drew the deeds, and never was discovered by said complainants until August 31, 1905, •when they received a letter from defendants’ attorneys, claiming damages for said breach of warranty in said deed. The writ of injunction was issued, ancl on final hearing of the case the decree of the court granted the prayer of the bill ancl reformed the deed. Deegan is dead, and none of the other parties to the transaction, or of the witnesses examined, are able to state who drew up the deed, nor what instructions were given to the draftsman.

Prior deeds of conveyance, were introduced in evidence, showing that the complainants never owned any part of Charleston street, but that the property as conveyed to them was described as bounded on the south by Charleston street. Wm. Deegan, who is dead, was the manager of the property, and much seems to have been left to him in regard to the transaction, while the details seem to a great extent to have passed out of the minds of the other parties. The evidence, however, establishes the facts that the negotiations commenced by appellants applying to the firm of Sage, Burgett & Co., real estate brokers, telling them that they needed more wharf property, ancl that Sage, of that firm, later informed them that they had an option on the “Hitchcock Press” property. This option is in evidence. It is made March 16, 190Ó, by Allen, Deegan & Hannan to Leather-bury & Paterson, and it describes the property as “the vacant ground on the river front, bounded on the north by Palmetto street, on the west .by Water street, on the south by Charleston street, and on the east by the channel of Mobile river, having a front of 350 feet, more or less, on the Mobile river”; the price being $35,000, $10,-000 cash on 1st of November, 1900, and balance in equal payments of one, tAvo, and three years after date, Avith interest at 6 per cent. Said option goes on to provide that if said Leatheibury & Paterson should accept the' option, and the trade be consummated, they Avould lease the property from the 1st of April, 1900, to the 1st clay of November following, at the monthly rent of $150. Tavo copies of the option appear in the record, as Exhibit A and B to the deposition of Burgett, of the firm of Sage, Burgett & Co. On one of them is the endorsement in Burgett’s handwriting, but unsigned, as follows: “We accept the above proposition provided the interest is made- 5 per cent, and the deferred payments are made on or before one, two, three, and four year's, and provided the title is satisfactory to our attorneys. Mobile, March 24th, 1900.” On the other copy are indorsements in figures, testified by Burgett to be very much like Deegan’s figures and pencil memoranda, testified to be in Deegan’s handwriting. The figures seem to be calculations showing the difference between 6 per cent, and 5 per cent., and showing the total amount and the division into four notes, in piace of three, as to the deferred payments. Between these figures is written in pencil, “Consummate as within, at,” and the paper is indorsed: “Option on Hitchcock’s wharf to Leatherbury & Paterson, March 16th to 23rd, 1900. $35,000,00.” The witness Burgett does not remember why the paper, Exhibit A, and his indorsement, were not signed, but supposes that either there Avas another paper or it was closed verbally. The Avitness Burgett does not remember that anything Avas said about changing the description of the southern boundary to the center of the street. It appears, also, that appellants did lease the premises from the 1«† of April to the 1st of NoATember, 1900 (said lease is attached to the deposition of Burgett as Exhibit C). at $150 per month, and in said lease the property is described, just as it is in the option, as bounded “on the south by Charleston street. The next waiting in evidence is a letter, dated “Mobile, 3 — á—1900,” addressed to Sage, Burgett & Co., and signed by Leatherbury & Paterson, stating that they will give |35,000 for the property, |10,000 payable November 1, 1900, balance in four equal yearly payments, with interest at 5 per cent., describing the property, just as it is in the option, as' bounded “on the south by Charleston street,” and “having a front of 350 feet more or less,” and agreeing to lease on the terms mentioned in the option. It appears, also, that said Leatherbury & Paterson employed the firm of L. H. & E. W. Faith (lawyers) to investigate the title to the property, to wit, the “Hitchcock Press” property, wdiicli seems to be the name given to it in all of the negotiations, except that it is once or twice called “Hitchcock Wharf.” Said lawyers furnished a written opinion, which is in evidence, in which the property is described, exactly as it is in the option, as bounded on the South by Charleston street. It is shown that “Hitchcock Press,” o.r “Hitchcock Wharf,” property has nveer extended into Charleston street, that it is 150 feet deep, and that to extend it into the middle of Charleston sreet Avould make it 371 1-2 feet, or thereabout.

On the other hand, the defendants offered in evidence the receipt, signed by Geo. E. Sage, dated March 30, 1900, which Sage'testified was handed to Deegan, acknowledging the receipt of the ded and notes, which a,re to be held by Sage in escrow until the November cash payment is made, in which receipt the property is described as bounded on the “south by line in center or middle of Charleston street,” and nothing is said about the number of feet. The only other documentary evidence on this subject is the' deed itself', Avhich, as before stated, describes the property in the same way. No witness is able to state aaIio authorided this sudden change in the description of the property, or that any instructions were given to the sciivener to so describe it; but Paterson, one of the defendants, testified that he does not recall any conversation about changing the' boundary, but that he had several conversations Av'ith Hannan, one of the complainants, while AleAving the property, in Avhich said Hannan, in reply to Paterson’s assertion, that the price was high, told him that they would, get down to the center of the street, and that they could remove the fence which was along the north line of the street whenever they desired. Hannan denies ever having any such conversation with Paterson, and insists on it that complainants never claimed to own to the center of the street, and never would have signed the deed,if he had.known that it was described in that way. The option, the lease, and the deed from Winston Jones to Hannan & Deegan (Exhibit D) were found among the papers of Deegan, deceased; but the receipt of Sage was not. The witness Sage, who seems to have had more to do with the negotiations between the various parties than any one else, says that he does not remember any conversation about changing the boundary to the center of the street; but it seems to him that something was said by someone, but he does not remember who it was, nor what was said.

In view of the fact that the recollection of all the parties seems to be fragmentary, much must depend upon the written evidence that has been left, including memoranda, which, though, strictly speaking not evidence, are admissible as circumstance to aid the court in ascertaining the intentions of the parties; and, taking it altogether, although we recognize the burden that rests on the complainant to make clear proof, yet we think it is perfectly evident that, the fixing of the southern boundary at the center of Charleston street, in place of at its northern line, was a mistake, and that the chancellor committed no error in his decree. We are not to be understood as intimating that a conveyance of a piece of land bounded on the south by a certain street would not convey it to the center of the street, subject to the public easement, nor do we touch upon the question of the right of the holder of the property to have the street opened; these questions not being presented to pleading or the brief's of the parties.

The decree of the court is affirmed.

Tyson, O. J., and Haralson and Denson, JJ., concur.  