
    Jackson, et al. v. Lucas.
    
      Bill to Reform a Mortgage.
    
    (Decided June 30, 1908.
    47 South. 224.)
    
      Reformation of Instruments ; Mortgages; Privity. — Where land was erroneously described in a mortgage which was foreclosed, at which sale the mortgagee became the purchaser, and then afterwards conveyed the land by proper description to another who -by the same description conveyed to the complainant in this case; and after the foreclosure the mortgagor in the original mortgage conveyed the land by proper description to the respondent in this cause, all of which facts are alleged in the bill, such bill fails to show that there was such privity between the parties as would sustain a bill by complainant to reform the mortgage as against the mortgagor and his grantee.
    Appeal from Randolph Chancery Court.
    Heard before Hon. W: W. Whiteside.
    Bill by Nixon Lucus against J. W. Jackson and another to reform a mortgage. Motion was made to dismiss the bill for want of equity and demurrers were filed. From a decree overruling the demurrers and the motion to dismiss, defendants appeal.
    Eeversed and rendered.
    Whatley & Cornelius, for appellant.
    The mortgage foreclosed cannot be reformed. — Stevenson v. Harris, 131 Ala. 470; Duval v. McGlusky, 1 Ala. 728. No such privity existed between the complainant and the respondents as entitles them to maintain this bill.- — - 18 A. & E. Ency P. & P. 797; Tillis v. Smith, 108 Ala. 264; Blackburn v. Randolph, 33 Ark. 125.
    Lackley & Bridges, and Hooten & Overton, for appellee.
    A mortgage may be reformed after a foreclosure under the power therein contained. — Stephenson v. Harris, 131 Ala. 470-477; Greene v. Dickson, 119 Ala. 346; McGehee v. Lehman Durr & Go., 65 Ala. 316. A purchaser of land is entitled to enforce his grantors right to the correction of a prior deed to the grantor.— Jones v. McNealy, 139 Ala. 379; Tillis v. Smith, 108 Ala. 264; Greeley v. DeCottes (Fla.), 5 So. Eep. 239. By privity in estate is meant a succession by purchase or descent, to the title of a former owner of the same property. In such case the successor is in privity with the former owner.— Words & Phrases, Yol. 6, Pages 5606 to 5610; Patton v. Pitts, ,80 Ala. 373; Ahlers v. Thomas, 77 Am. St. Eep. 820; 2 Black on Judgments, Sec. 549. A mortgagee having sold and conveyed his interest in the mortgaged premises, is not a necessary or proper party to a bill filed by his grantee for the reformation of the mortgage of the lands by him. — Prout v. Hogue, 57 Ala. 28; Rasin Fertiliser Go. v. Bell, 107 Ala. 261; Hardwell v. Lehman Durr & Gd., 72 Ala. 344; Wilkinson v. May, 69 Ala. 33. i ”•!
   DENSON, J.

— Stevens executed a mortgage to Schuessler & Co., on 80 acresc of land to secure a present indebtedness. The correct description of the land is S. 1/2 of N. E. % and S. y2 of N. W. 1/1 of section 2, in township 21, of range 10, in Randolph county; but the scrivener, in drawing the mortgage, described the lands as being in section 22, so that a mistake was made in the description of the land. After the law day in 1896, as the bill shows, Schuessler & Co., advertised and sold the lands under the mortgage, and became the purchasers at said sale. After the sale they rented the lands to Stevens for the year 1897, and for several years thereafter. On June 4, 1903, the individual members composing the firm of Schuessler & C'o., sold and conveyed by deed, with full covenants of warranty, the land, by its correct numbers, to W. P. Lucas. Lucas went into possession and held the lands as his own until the 31st of December, 1904, when he sold and conveyed by deed, with full covenants of warranty, the land by its correct numbers to Nixon Lucas, who Avent into immediate possession and has remained in possession ever since. After the foreclosure sale (the exact time not being shown by the bill) Stevens sold and conveyed the land to J. W. Jackson for a consideration of |20. Jackson, on the 18th day of May, 1906, instituted a statutory action of ejectment against Nixon Lucas tenant to recover possession of the lands. The tenant, in the manner required by the statute, had Nixon Lucas made a party defendant to the ejectment suit. The bill here was filed by Nixon Lucas, against Stevens and Jackson, to reform the mortgage so as to make it read “section 2,” instead of “section 22,” and to perpetually enjoin the ejectment suit. A motion to dismiss the bill for the want of equity, and a demurrer to the bill, were overruled by the chancellor ; arid this appeal was taken from that decree.

The first proposition which presents itself for consideration is whether or not Nixon Lucas, complainant, stands in such relation of privity to the mortgage as that he may maintain the bill. There can be no doubt of the right in Schuessler & Co., as mortgagees, before the attempted foreclosure, to maintain a bill to correct the description of the land in the mortgage; and it may be conceded (though we do not decide the point) that, had the mistake been carried into their deed to W. P. Lucas, and into the deed from Lucas to complainant, “equity would work back through all,’7 and entitle the complainant (the last vendee) to a reformation against the mortgagor. 18 Ency. Pl. & Pr. 797. But we have seen that no mistake occux’red in either of the conveyances subsequent to the mortgage; and in the case of Blackburn v. Randolph, 33 Ark. 119, 125, which was an action by the last vendee of a series of conveyances, where it was contended that there was no privity between the complainant and the trustee in the deed of trust under which the first sale was made, the court on this point said: “If, in either one of these conveyances, the deed of trust, that from Tate, or Bartless, or Sheppard, or Buck, or Drake, there was not a mutual mistake, whereby each party, vendor and vendee, actually supposed the particular piece of ground was described, when in fact it was not, the equity of the complainant would, of course, fall. What is meant, when the cases say that the mistake will only be corrected between the original parties and those claiming under them in privity, is, in effect, that the court will not interfere in favor of subsequent purchasers, who were simply ignorant of the former mistake, and may be presumed to have intended to take by the description used, nor against subsequent purchasers by the true description for valuable consideration, without notice of the former mistake.77 In Tillis v. Smith, 108 Ala. 264, 19 So. 374, a bill was filed by tbe grantee against tbe grantor to reform a conveyance in respect to tbe description of tbe land conveyed. A plea was interposed to tbe bill, setting up as a defense that tbe complainant bad conveyed by deed the lands as described in tbe deed sought to be reformed to a third party, and from that fact it was argued that the complainant was not a proper party to maintain tbe suit. Speaking of this contention this court said: “It has been ruled, and we think correctly, that when a mistake occurs in a series of conveyances tbe last vendee may have tbe deeds corrected.” Tbe court cited, amoung others, tbe case of Blackburn v. Randolph, supra. After discussing tbe insistence that tbe right of tbe complainant was destroyed by bis deed to another containing tbe same mistake that tbe original deed contained, tbe court held that it was not necessary to decide tbe abstract question of law maintained in tbe argument of counsel, because, as tbe court said, “Tbe plea does not aver that any mistake was made in appellant’s conveyance to tbe third party, and hence it utterly fails to show any privity between that person and Smith (tbe original grantor) which would authorize him to file a bill to reform the conveyance executed by Smith to tbe appellant.”

Applying that ruling to tbe case in judgment, tbe bill on its fact showing that there was no mistake in complainant’s deed nor in the deed of bis vendor, no privity is shown to exist between complainant and Stevens, tbe mortgagor. Tbe application of tbe ruling is fully supported by the case of Haley v. Bagley, 37 Mo. 363, in which case it was held that a purchaser at a mortgage sale made under tbe power contained in tbe mortgage held no such relation of privity with tbe mortgagor as would authorize him to maintain a bill to reform and correct a mistake or misdescription in the mortgage. See, also, Schwickerath v. Cooksey, 53 Mo. 75. On the foregoing authorities and considerations the court is of the opinion that the complainant fails by his bill to make a case calling for the intervention of a court of equity in his behalf, and that the chancellor erred in overruling the motion to dismiss the bill for the want of equity. .

Reversed and rendered.

Tyson, C. J., and Simpson and Anderson, JJ., concur.  