STONE V. HALE.

[17 ALABAMA, 557.]

REFORMATION OF WRITTEN INSTRUMENT-MISTAKE.-Where an attorney in drawing a deed by which a father conveys a life estate to his daughter neglects to insert "for her sole and separate benefit," it constitutes such a mistake as a court of equity will relieve against.

EQUITY OF PARTY WHO PROCURES REFORMATION OF WRITTEN INSTRUMENT attaches prior and is paramount to the lien of a judgment obtained against the party in whom, by reason of such mistake, the legal title vests. STATUTE OF LIMITATIONS, IN EQUITY, RUNS FROM TIME OF DISCOVERY OF MISTAKE; laches can not be attributed before that time.

IN MOTION TO DISMISS, WHERE BILL CONTAINS EQUITY, the question of proper parties could not come up; for the plaintiff should have an opportunity to perfect his bill, which would not be allowed him if it was dismissed.

TRUSTEE WITHOUT ANY BENEFICIAL INTEREST has not equity sufficient to entitle him to bring a bill for the reformation of the instrument under which his cestui que trust holds.

BILL in equity, by plaintiff in error, to secure reformation of written instrument. Warren Stone, desiring to provide for his daughter, Martha G. Hamilton, the wife of John M. Hamilton, an improvident man, employed an attorney at law to draft a conveyance to plaintiff of certain slaves and their increase, to be held in trust for the sole use and benefit of his said daughter and her children. The attorney, by mistake, did not draw the instrument so as to effect this purpose. An execution directed against John M. Hamilton was afterwards levied by the defendant upon the said slaves, and the said plaintiff, believing that the above conveyance expressed the intention of the grantor and created a separate interest in Mrs. Hamilton, interposed a claim to the property. The action was tried in the court below, and judgment rendered for the plaintiff; but the supreme court reversed this judgment, upon the ground that the deed did not vest a separate title in Mrs. Hamilton, but that John M. Hamilton, by reason of his marital rights, has such an interest as is subject to levy and sale. The bill further shows that said case is now pending in the circuit court, and prays that the conveyance be reformed so as to speak the intention of the donor, an injunction, etc. The bill was dismissed by the chancellor for want of equity, which is now assigned as error.

Bugbee and Belser, for the plaintiff.

White, for the defendant.

By Court, CHILTON, J. Two questions arise in this case: 1. Does the bill present such a state of facts as will justify the

interference of a court of equity to reform the deed? 2. Whether the bill is filed by the proper party. It is obvious the investi、 gation of the last point will be rendered unnecessary, should we determine that the court can not, under the circumstances of the case, entertain jurisdiction of the bill.

1. Mistakes are usually considered by authors of two kinds: mistakes of law and mistakes of fact. In respect to the first, mistakes in matter of law, it is said they can not, in general, be relieved either at law or in equity, it being a maxim which is alike applicable to both courts, Ignorantia legis neminem excusat: 1 Story's Eq. Jur., 4th ed., 123, secs. 110, 111, and authorities cited in note 2. The ground upon which this maxim is founded, as suggested by Lord Ellenborough in Bilbie v. Lumley, 2 East, 469, and adopted by Judge Story, is, that were the law otherwise, there is no saying to what extent the excuse of ignorance might not be carried, and that nothing would be more liable to abuse, or contribute more to embarrassing litigation, than to permit parties to overhaul their most solemn contracts and to reclaim property upon the pretense that they were ignorant of the law operating on their title: 1 Story's Eq. Jur., sec. 111. But although the rule is thus broadly laid down, "that ignorance of the law shall not affect agreements, nor excuse from the legal consequences of particular acts:" Id.; 1 Fonbl. Eq., b. 1, c. 2, sec. 7, note v; still there is a numerous class of cases which have been solemnly adjudged not to fall within its influence, as being without its reason and spirit. It would subserve no good purpose to swell this opinion with an examination of the great number of cases which have been decided, bearing upon this question, and which, from their number as well as contrariety, serve rather to bewilder than enlighten the inquirer for a stable and correct principle of decision. We will content ourselves by referring to the general principles of equity applicable to the case before us.

The desire to suppress frauds, and to promote good faith and confidence in the formation of contracts, has induced the courts of equity from an early day to reform written instruments so as to make them speak the true intention of the parties. "Courts of equity," says Judge Story, "have not hesitated to entertain jurisdiction to reform all contracts where a fraudulent suppression, omission, or insertion of a material stipulation exists, notwithstanding to some extent it breaks in upon the uniformity of the rule as to the exclusion of parol evidence to vary or control contracts; wisely deeming such cases to be a proper exception to the rule, and proving its general soundness."

But coming to the principle which we conceive embraces the case before us, the same learned commentator says: "It is upon the same ground that equity interferes in cases of written agreements, where there has been an innocent omission or insertion of a material stipulation, contrary to the intention of both parties and under a mutual mistake. To allow it to prevail in such case would be to work a surprise or fraud on both parties, and certainly upon the one who is the sufferer." The above quotation is so apposite to the case at bar as to require no comment: 1 Story's Eq. Jur., 4th ed., secs. 153-155, p. 176, note 2, and authorities cited. The case before us is briefly this: A father, having a daughter, unprovided for, and whose husband was improvident, determines to vest some property in a trustee to her sole and separate use for life, as the means for her support, etc., remainder to her children, etc. Instructions are given to an attorney to draw the deed, but through his omission, the words "to her sole and separate use," or equivalent expressions, are left out by which mistake of the attorney the property is vested in the improvident husband for life, if the deed be not reformed, and as such, is now about to be wrested from its appropriate destination, to pay the debts of the husband. Thus, by the mistake, the whole object of the gift for life, as well as the intention of the donor in making it and the donee in receiving it, is defeated. The creditors are insisting upon this mistake in framing the deed, to subject the property to their executions against the husband of the donee, and if allowed to avail themselves of this accidental legal advantage, the boon of the father, designed for the comfort and support of his child, is to be enjoyed by strangers to his blood. To hold that they may do so, would be, in the language of Judge Story, "to allow an act, originating in innocence, to operate ultimately as a fraud, by enabling the party who receives the benefit of the mistake to resist the claims of justice, under the shelter of a rule framed to promote it:" 1 Story's Eq. Jur., sec. 155. Chancellor Kent, in Gillespie v. Moon, 2 Johns. Ch. 596 [7 Am. Dec. 559], a case not unlike the present in one aspect, said: "It would be a great defect in what Lord Eldon termed the moral jurisdiction of the court, if there was no relief for such a case: Townshend v. Stangroom, 6 Ves. 328; Henkle v. The Royal Exchange Ins. Co., 1 Ves. sen. 317; Langley v. Brown, 2 Atk. 195.

In Clopton v. Martin, 11 Ala. 187, the vendor procured a friend to write a bill of sale of a slave, but which, by the agreement between the vendor and vendee, was not to contain a covenant

of warranty as to soundness, the slave sold having before that time been afflicted with fits; but in the bill of sale was inserted: "And said negro man I warrant to be sound at this time;" held, that the vendor was relievable in equity from the covenant, and a perpetual injunction was granted against the suit of the vendee upon it. See also O'Neil v. Teague, 8 Id. 345, where the court throw out a similar intimation. Our conclusion is, that taking the allegations of the bill as to the fact of mistake as true, which we must do upon a motion to dismiss, it is competent for the chancery court to rectify the mistake by reforming the deed so as to make it truly speak the intention of the donor. This equity attaches to the property contemporaneously with the execution of the deed, and is not defeated by the rendition of the judgment and levy of execution on the part of the husband's creditors. In Price v. Brassfield, 9 Id. 573, the question was left open whether lands omitted out of the contract of sale by mistake, which is corrected by a court of chancery, were bound by the lien of a judgment obtained against the vendor after the contract was made, but before its correction. Ormond, J., in delivering the opinion, said, that if it was necessary to decide the point, the court would be inclined to think that the omission to insert in the bond for title a part of the land actually sold would not enable a judgment creditor to claim it in virtue of his lien, whatever the rule might be as to bona fide purchasers from the vendor without notice. Judge Story lays it down as the rule, that courts of equity will interfere as against judgment creditors, and correct mistakes, though not as against bona fide purchasers without notice: 1 Story's Eq. Jur., sec. 165. If the creditor in this case can be said to have an equity at all, it is certainly junior to that of the cestui que trust, and must therefore be postponed, upon the maxim, Qui prior est in tempore, potior est in jure. But the creditors stand in no better condition than their judgment debtor. The rendition of their judgment and levy of execution vest in the defendant in execution no greater title than he had before; and what was that title? The answer is: conceding, as we have said, the facts of the bill to be true, he had a mere legal title in the slaves for the life of his wife, occasioned by a clerical misprision, but in the contemplation of the chancery court, not the semblance of equity. The cestui que trust, then, does stand upon an equity superior to the creditors, and consequently the court may become active in her relief. It will be observed that in this case the creditors alone resist the reformation of the instrument.

But it is said the application comes too late. We do not think so. Many cases may be found in which similar relief was granted after the lapse of a longer period. The case of Gillespie v. Moon, 2 Johns. Ch. 596 [7 Am. Dec. 559], may furnish an example. Besides, it is a fair inference from the allegations of the bill, that the mistake was not discovered until pointed out by the decision of this court: Hale et al. v. Stone, 14 Ala. 803; and laches could not in equity be attributed to the party before the discovery of the mistake. In equity, the statute of limitations begins to run from that period: 2 Story's Eq. Jur., 4th ed., sec. 1521 a, citing Brooksbank v. Smith, 2 You. & Coll. 58. We come to the only remaining point, whether the bill was properly dismissed for want of proper parties. When the bill contains equity, the question as to parties could not come up on a motion to dismiss, for the plaintiff must have an opportunity to perfect his bill, which is disallowed him if it be dismissed. Hence, in such cases, if the objection of the want of proper parties appear on the face of the bill, the practice is to demur.

But the case before us goes beyond the mere question of proper parties, and falls within another principle of equity, namely, that the complainant must show by the allegations in his bill that he is entitled to the relief which he seeks: McKinley v. Irvine, 13 Ala. 681, and authorities there cited. Does the complainant in the case before us do this? He is a dry trustee of the legal title, holding it for the sole purpose of conveying it to the remaindermen upon the termination of the life estate in the wife-the conduit through which the title is to pass. He has no beneficial interest whatever in the property, and it is not for him to say to the donor, You have given too little or too much, or have made a mistake in your directions as to what you have given. The wife, assuming the allegations of the bill to be true, is in equity the sole owner for life of the property; she is the party who must by her next friend become the mover for the reformation of the deed, and the trustee, who is merely the depositary of the dry legal title, may be made a party either complainant or defendant. But he has no equity whatever-no title to relief upon his own allegation, but only upon the allega tions of the wife. In this case, the wife is not made a party at all, and as she is the only person who is entitled to invoke the aid of the chancery court to correct the mistake, it is very clear upon principle that the trustee alone has no power whatever to move in the matter; he shows no equity in his bill, and there