Opinion
SC 695.
May 30, 1974.
Appeal from the Circuit Court, in Equity, Lawrence County, Billy C. Burney, J.
W. L. Chenault, Decatur, for appellants.
While there is favorable presumption attending the trial court's findings on disputed evidence heard orally before him, there is no such presumption attending his construction of the facts, nor where his conclusion rests on facts indisputably established nor when the court took an erroneous view of the law as applied to the facts. Waters v. Merritt, 277 Ala. 346, 170 So.2d 492; Murphree v. Hanson, 197 Ala. 246, 72 So. 347; Henderson v. Henderson, 228 Ala. 438, 153 So. 646; Lassiter and Co. v. Nixon, 218 Ala. 484, 119 So. 17; Turner v. Turner, 251 Ala. 295, 37 So.2d 186. To correct a deed on the ground of mistake, when the mistake is clearly shown, is one of the familiar duties of a Court of Equity, and equity will grant relief on the ground of mistake, not only when the mistake is expressly proved, but also when it is implied from the nature of the transaction, and it is not essential that either party should have been guilty of fraud. Glenn v. City of Birmingham, 223 Ala. 501, 137 So. 292. Where through mistake a written agreement contains substantially more or less than the parties to it intended, or, from ignorance or want of skill in the draftsman, the object and intention as contemplated by the agreement is not expressed in the written instrument by reason of the use of inapt expressions, equity will interpose and reform the agreement. Fidelity Service Insurance Co. v. A. B. Legg Sons Burial Ins. Co., 274 Ala. 94, 145 So.2d 811. The boundary line between adjacent land owners may be changed by agreement; it is undisputed in this case that the appellee Campbell agreed with the appellants that the line would be established by the survey and that he did not buy nor did he claim more than five (5) acres. Morgan v. Larde, 282 Ala. 426, 212 So.2d 594; Whiddon v. White, 285 Ala. 109, 229 So.2d 498; McNeil v. Hadden, 261 Ala. 691, 76 So.2d 160 and cases there cited.
Roger H. Bedford, Russellville, for appellees.
The judgment of the trial judge will not be disturbed on appeal unless palpably wrong; his findings from the evidence being likened unto a verdict of a jury. Wood v. Wood, 263 Ala. 384, 82 So.2d 556; Stevens v. Thompson, 279 Ala. 232, 194 So.2d 140; State v. Reynolds Metals Co., 280 Ala. 561, 196 So.2d 408.
This is an appeal from the Circuit Court of Lawrence County, in Equity, wherein a final decree was rendered adverse to appellants/complainants, J. W. Oliver and his wife, Savannah, who filed a complaint for the reformation of a deed.
The threshold question raised by the complaint was what was the true intention of the parties in the conveyance of "five (5) acres, more or less," by the Olivers to the appellees, Willie Campbell and his wife, Marcelle, in 1963.
Rather than completely reforming the deed, as requested by the Olivers, the trial judge answered this question by concluding, after hearing the evidence ore tenus, that there was merely a typographical or directional error in the original deed in the use of the word "southeasterly" rather than "northeasterly." Judge Burney substituted the word "northeasterly" for the word "southeasterly" in the deed which makes the description in the deed close and certain.
The issue dispositive of this appeal is whether the trial Court's findings of fact were palpably wrong, so contrary to the weight of the evidence as to be manifestly unjust, or totally unsupported by the evidence. We answer the question in the negative and affirm.
The Olivers owned a large tract of land in Lawrence County. The Campbells rented a house from the Olivers located on the tract, a part of which is the subject of the controversy before us. Sometime in April, 1963, Oliver and Campbell had several discussions about the Campbells buying a portion of the land owned by the Olivers. As a result of these discussions, Oliver decided to sell Campbell part of the land that included the house the Campbells were renting at the time. Oliver and Campbell physically went upon the land and "walked off" the parcel to be conveyed; and, while they were so doing, Campbell wrote down the directional dimensions of the parcel. Neither Oliver nor Campbell knew exactly how much land they had "walked off." In their preliminary discussions, however, including the time they were together on the land, Oliver indicated that he intended to sell Campbell the land at $100 per acre. After Oliver and Campbell had finished "walking off" the parcel, they did not agree to a final price, but later Oliver told Campbell that if he wanted the land he could have it for $650. Campbell agreed to buy the parcel they had "walked off" for $650. Several days later they went to the Probate Judge, who drew a deed from the legal description given verbally by Campbell. Inadvertently, Campbell had forgotten to bring the paper on which he had recorded the directional dimensions at the time he and Oliver "walked off" the parcel. Upon this basis the Probate Judge drew what was purported to be the true and correct legal description of the parcel the parties intended to convey.
The Campbells immediately went upon the parcel and erected fences and planted crops without any objection from the Olivers. The Campbells remained upon the property until their divorce, at which time Campbell removed himself from the property. So far as either the appellants or the appellees were concerned, Campbell was living upon the parcel of land conveyed in the deed in 1963.
Eight or nine years after the conveyance, the Olivers engaged a registered land surveyor (Byron White) to come upon the land and establish how much land was in the parcel conveyed. Byron White was given the deed and legal description to work with. As a result of his survey, White found that the legal description failed to close the parcel; and, assuming the correction of this defect, it contained more than five (5) acres. The Olivers then proposed to reform the deed by instructing White to "carve out" five (5) acres for the Campbells. White testified that the minimum acreage that could be described and still include the Campbells' house was 5.58 acres.
White also testified that if one word ( northeasterly for southeasterly) was changed in the legal description on the deed of conveyance, that it would be a very accurate "Gum Stamp" description of the fourteen acres he surveyed south of Byler Road. The description of the parcel as set out on the deed of conveyance was as follows:
Beginning at the SE corner of the NW 1/4 of the SE 1/4 of section 14, township 7, Range 8, and run west 110 yards in a southwesterly direction 400 yards, thence south 295 yards, thence in a southeasterly direction to a point of beginning, all in section 14, township 7, Range 8, and contained 5 acres, more or less. [Emphasis supplied.]
The trial Court found that the only mistake in the deed was the directional error and he corrected that mistake. As shown by the facts set out above, there was evidence to support his findings.
In Patterson v. Brooks, 285 Ala. 349, 232 So.2d 598 (1970), Justice Merrill, speaking for the Court, stated:
"Where evidence is heard orally before the trial court, the finding of the court has the effect of a jury's verdict and will not be disturbed on appeal, unless plainly erroneous, whether in law or equity. And we must affirm the trial court's decree, if fairly supported by credible evidence under any reasonable aspect, regardless of what might be our view of the evidence."
The effect of the assignments of error was that the trial Court erred in its Final Decree. Where the essence of the assignments of error is that the trial Court erred in rendering its decree, if there is evidence to support his findings of fact, the decree must be affirmed. Inland Mutual Insurance Co. v. Hightower, 276 Ala. 291, 292, 161 So.2d 493 (1964).
Having reviewed the assignments of error and finding no grounds for reversal, we therefore affirm.
Affirmed.
HEFLIN, C. J., and BLOODWORTH, and McCALL, JJ., concur.
COLEMAN, J., concurs in result.