Harwood Parsons, of Fairfield, for appellees. Allegations of the bill as amended are sufficient as to mutual mistake as a ground for reformation. Ikard v. Empire Guano Co., 233 Ala. 579, 173 So. 87; O'Rear v. O'Rear, 219 Ala. 419, 122 So. 645; Great Atlantic Pacific Tea Co. v. Engel Realty Co., 241 Ala. 236, 2 So.2d 425; Christopher v. Goode, 226 Ala. 338, 146 So. 881; National Union Fire Ins. Co. v. Lassetter, 224 Ala. 649, 141 So. 645; Eastis v. Beasley, 214 Ala. 651, 108 So. 763; Warren v. Crow, 195 Ala. 568, 71 So. 92; Camper v. Rice, 201 Ala. 579, 78 So. 923, 925. Where an accord of mind is reached and the document intended to express the agreement fails to do so by reason of mistake of the draftsman, it is immaterial who employed him. Ballentine v. Bradley, 236 Ala. 326, 182 So. 399; Id., 238 Ala. 446, 191 So. 618; McCaskill v. Toole, 218 Ala. 523, 119 So. 214. Allegations of the bill as to fraud and mistake are sufficient. Cobern v. Foshee, 221 Ala. 301, 128 So. 779; Ikard v. Empire Guano Co., supra. A party in possession who resorts to equity to settle a question of title is not chargeable with laches, no matter how long the delay. First Nat. Bank of Brackton v. McIntosh, 201 Ala. 649, 79 So. 121, L.R.A.1918F, 353. Bill to reform need not be filed until there is assertion of rights adverse to the true agreement.
The bill embodied all of the essentials of a good bill for reformation; precision or definiteness as to the property to be conveyed, the conveyance through mutual mistake of an additional house and lot, and that complainants were not guilty of gross or culpable negligence. Camper v. Rice, 201 Ala. 579, 78 So. 923; Warren v. Crow, 195 Ala. 568, 71 So. 92; Christopher v. Goode, 226 Ala. 338, 146 So. 881; Phoenix Chair Co. v. Daniel, 228 Ala. 579, 155 So. 363; Houston v. Faul, 86 Ala. 232, 5 So. 433; Burch v. Driver, 205 Ala. 659, 88 So. 902. Where draftsman of deed, as in this case, includes property not covered by the contract of sale, equity will relieve by reforming the deed. Author, supra. Appellants' contention that the agent of the grantors falsely represented that the designated property had a certain frontage, thereby misleading appellants, is supported only by the evidence of appellants as interested witnesses, and such evidence was in direct conflict with that of said agent and disproven by admissions and conduct of appellants. Under such circumstances, the decree should be affirmed.
In such case equity will reform. Christopher v. Goode, 226 Ala. 338, 146 So. 881; Collier v. Ogburn-Davison Co., 231 Ala. 344, 164 So. 741; Parra v. Cooper, 213 Ala. 340, 104 So. 827. The mortgagee may foreclose on any part of the property conveyed by the mortgage. Code, ยง 9015.
Parker v. Lewis Grocer Co., supra; Carter v. Adler, 138 Cal.App.2d 63, 291 P.2d 111. Though the words "fraud" or "inequitable conduct" are not used in the bill, allegations of fraud or inequitable conduct may appear from the facts alleged. Winslett v. Rice, 272 Ala. 25, 128 So.2d 94; Christopher v. Goode, 226 Ala. 338, 146 So. 881. A written contract may be reformed so as to show the true consideration or inducement for the contract at the time when the written agreement was executed, even when the consideration is not expressed or is expressed incompletely in the writing.
To authorize reformation of a deed or mortgage there must be mutual mistake of both parties, or a mistake of one accompanied by fraud or inequitable conduct of the other. Ballentine v. Bradley, 236 Ala. 326, 182 So. 399; Christopher v. Goode, 226 Ala. 338, 146 So. 881. The burden of proof is upon complainant.
The rule is, of course, recognized which requires particularity of averment in cases of this character; but our cases are to the effect the rule does not call for a strained and unreasonable construction of the language used or undue refinement or nicety of pleading. Christopher v. Goode, 226 Ala. 338, 146 So. 881. The bill is to be construed as a whole and given a reasonable and not unnatural construction. So considered the bill, with particular reference to the averments found in paragraph 6 as amended, sufficiently meets the requirements of our rule of pleading.
26 C.J. 434; 5 C.J. 195; 14 R.C.L. 1363; 3 Am.Jur. 989; Glens Falls Ins. Co. v. Garner, 229 Ala. 39, 155 So. 533; Georgia Home Ins. Co. v. Kline Co., 114 Ala. 366, 21 So. 958. The averments of a bill are sufficiently certain when the court is enabled to see clearly that complainant has such rights as warrant its interference, and defendant is distinctly informed of the nature of the case he is called on to defend. Wood v. Barnett, 208 Ala. 295, 94 So. 338; Christopher v. Goode, 226 Ala. 338, 146 So. 881. BROWN, Justice.