Opinion
No. 27235.
December 3, 1928. Suggestion of Error Overruled January 21, 1929.
CANCELLATION OF INSTRUMENTS. Chancellor was warranted, under prayer for general relief, to enter decree refusing to cancel instrument and construing it as executed.
Where bill, instituted for purpose of securing cancellation of instrument defining boundaries, contained prayer for general relief, the chancellor was warranted in entering a decree constituting in effect a refusal to cancel instrument, and construing it as executed between the parties so as to establish the boundaries in accordance therewith.
APPEAL from chancery court of Hinds county, First district; HON. V.J. STRICKER, Chancellor.
Morse Bryan and Franklin, Easterling Fox, for appellant.
The decree of the court below is incorrect for the reason that it is not in accord with the pleading and proof. The original bill contains a prayer purely for cancellation, and not one for reformation. The answer asks for no affirmative relief, therefore the court would be bound by the pleading and by the prayer of the original bill. The court would have no more authority to order a reformation of the contract than it would have to order an injunction, or any other matter which was not incidental to the bill or the prayer. The rule is stated by Griffith in Mississippi Chancery Practice, p. 688, sec. 612, thus: ". . . Second, the relief to be decreed must conform to, and come within, both the pleadings and the proof, including as proof those things which are judicially admitted, and no valid decree can go outside of the boundary prescribed by the pleadings and proof." And further "The relief must come within the prayer, general or special of the bill, and it has been also heretofore shown that when the allegations of the bill are complete and full upon the facts, the court may grant any relief under the prayer for general relief which the proof thereunder justifies, provided the relief so granted be such, fairly considered, as will not operate to the surprise or prejudice of the defendant, reasonable alertness having been exercised on his part. The principle is that, under the prayer for general relief, the decree should allow the complainant whatever right is made by the pleadings and established by the proof even if the principal relief or the full measure of relief prayed for specially cannot be allowed, and the court should not take too technical a view of the matter. Inasmuch, however, as only that relief can be granted under a prayer for general relief which is justly appropriate under the pleadings and proof, we must now notice, in the fourth place, that the right to relief under a general prayer, different from the relief specially prayed, is limited by the requirement that the relief must not be distinctly inconsistent with the theory of the case — that is to say, the unspecified relief under the general prayer, if different from that specially prayed, must be such as may be harmonized with the frame and essential character of the bill, and shall not be such as will stand entirely outside of the evident purpose of the suit as shown by the manner in which the complainant has marshalled and presented his facts in his bill and pray specially in connection therewith." The above quotation is made up from established rules of chancery proceedings and they are substantiated by the interpretation of our supreme court. See Blythe v. Simmons, 107 Miss. 510, 65 So. 572; Barker v. Jackson, 90 Miss. 330, 44 So. 34.
The cancellation prayed for under this bill and incidental relief asked for in the same bill should all be construed together, and close examination thereof shows that the entire tenor of the bill was for cancellation. The instrument should have been either cancelled or the bill should have been dismissed. 9 C.J. 1245.
Watkins, Watkins Eager, for appellee.
In view of the fact that opposing counsel take the view that the decree which the learned trial court rendered cannot be sustained by the pleadings in this case, we wish to direct the court's attention to several material points with reference to both the pleadings and the evidence. The very agreement itself under which this suit arose and as set out in the bill of complaint, distinctly states that appellee, Mrs. Johnson, is the owner of a certain lot of land on the west side of Farish street, extending north to the center of Town creek, and appellant, the owner of another tract of land on the west side of Farish street, and extending south to the center of Town creek.
The Chancellor sought to construe this instrument in such a manner as to effectuate the intention of the parties at the time of its execution, and to that end, in his oral opinion, quoted the preamble of the agreement, wherein it was stated that each party owned to the center of the creek. The court further says that "if the record shows anything definite on that point, and if the evidence is credible and uncontradicted, it directs us to the one fact which we necessarily inquire for." The court then referred particularly to the testimony of the surveyor, W.B. Montgomery, and directed that the decree be drawn "based on the written agreement between the parties, and this testimony, establishing the said boundary as one and one-half feet North of the footings of the piers and running parallel with the North line of Capitol Street.
Counsel vigorously contends that the bill of complaint asked for a cancellation of this agreement, and that the decree entered is not in accord with the prayer of the bill. We respectfully submit that the decree is in strict accord, not only with the pleadings, but with the entire record, and further in accord with the very theory of the case, as advanced by appellant. See 21 C.J., 679, par. 858; Burnett v. Boyd, 60 Miss. 638.
Argued orally by W.E. Morse and Lamar F. Easterling, for appellant, and P.H. Eager, for appellees.
Appellant instituted suit in the chancery court of Hinds county, seeking, in his bill of complaint, to cancel a certain written instrument entered into between himself and Miss Mary Lee Farish, now Mrs. Johnson, one of the appellees here.
It appears that appellant's property south of Town creek joined the property of Mrs. Johnson, nee Miss Mary Lee Farish, lying north of said creek. In the year 1910 some question arose as to the exact line between the land of these parties. The center of Town creek was supposed to be the line, but neither the appellant nor Mrs. Johnson seemed to know definitely where this line was.
In order that the south boundary of the Farish land and the north boundary of appellant's land might be definitely established as a straight line rather than follow the meanderings of Town creek, the agreement in question was executed by the appellant and Miss Mary Lee Farish, now Mrs. Johnson, owners of said adjoining lands at that time.
This agreement is as follows:
"This agreement entered into between M.L. Farish of the city of Jackson, county of Hinds and state of Mississippi, party of the first part; and S.D. Redmond of the city of Jackson, county of Hinds and state of Mississippi, party of the second part, Witnesseth: —
"That, whereas the party of the first part is the owner of that certain lot of land in said city situated on the west side of Farrish street and extending south to the center of Town creek, and
"Whereas the party of the second part is the owner of that certain lot of land in said city situated on the west side of Farrish street and extending north to the center of Town creek; and
"Whereas said parties are desirous of establishing the dividing line between these properties, and in order that a perpetual monument may be erected and no uncertainty exist in reference to said point; it is agreed and understood by the parties hereto that the center of Town creek is three hundred fifty-nine and three tenths feet north of the intersection of Farrish and Capitol streets, said measurements being taken from the outside curb lines, that is to say, at the point where the north line of Capitol street intersects at said outside curb line with the west side of Farrish street, and that said line extends west from said point parallel with Capitol."
This instrument was acknowledged by the parties and duly recorded.
The present owners of the property north of the creek were joined as defendants.
The Farish land north of the creek was designated as lot 34, and the appellant's land south of the creek comprised a part of lot 48 of a certain survey. Lot 48 extended from Capitol street northward to the center of Town creek, and was subdivided into fourteen lots; and appellant acquired what was supposed to be lots 1 to 4, inclusive, of lot 48, from W.T. Pate.
The complainant, appellant here, in his bill, alleges that one John I. Pierce, a civil engineer who had made a survey of said lots 34 and 48, approached the complainant and suggested that an agreement should be effected between the owners, so that the dividing line could be established and agreed upon; that thereafter one W.J. Clancy, representing Mrs. Mary Lee Farish Johnson, brought to complainant an instrument purporting to be an agreement as to where the center of Town creek should be, and that the same would be the dividing line between said properties; that he (the complainant) was led to believe, by signing the said agreement, that each owner would lose to the other certain small fractional parts of the lots as a result of straightening said line; that complainant did not verify the measurements referred to in said instrument, but assumed they were correctly made, and would effectuate the said agreement; and that complainant did not observe that reference was made to measurements from the curb rather than from the intersection of the north line of Capitol street with the west line of Farish street, from which point he assumed the measurements would be made.
We do not deem it necessary to refer to the other allegations of the bill in order to present the questions decided.
The prayer of the bill was to cancel said instrument as having been executed under a mistake of fact, and that any and all claims of defendants to all property south of the center of Town creek to be canceled, and there was also a prayer for general relief.
The answer admitted the execution of the instrument, but denied that either the said Pierce or Clancy represented Mrs. Johnson, nee Farish, in the preparation and execution of the same.
Considerable testimony was taken, ranging chiefly around the question of the location of the center of Town creek, at the time the instrument was executed. Some of the witnesses placed it at one point, and some at another. The complainant had built a brick building on his property, and the chancellor found, as a fact, that the center of Town creek in 1910 was one and one-half feet north of the north piers of said brick building. We cannot say there was not sufficient evidence to warrant this finding.
The appellant insists, however, that the decree of the court was not responsive to the issues joined, and to the prayer of the bill; that the purpose of the bill was to cancel the instrument, whereas the effect of the decree was to reform it. The effect of the decree was a refusal to cancel the instrument, but to construe it as executed between the parties. We quote from the oral opinion of the chancellor in the record as follows:
"A decree will be entered therefore based on the written agreement between the parties, and this testimony, establishing the said boundary as one and a half feet north of the footings of the piers, and running parallel with the north line of Capitol street."
Under the prayer for general relief, we think the chancellor was fully warranted in the decree entered:
"A prayer for general relief is as broad as the equitable powers of the court. Under it, the court will shape its decree according to the equities of the case, and, broadly speaking, will grant any relief warranted by the allegations of the bill, whether it is the only prayer in the bill, or whether there is a special prayer for particular and different relief; and defects in the special prayer are usually cured by a general prayer. If the facts alleged are broad enough to warrant relief, it matters not how narrow the specific prayer may be, if the bill contains a prayer for general relief. The prayer for general relief serves to aid and supplement the special prayer by expanding the special relief sought, so as to authorize further relief of the same nature. It may also serve as a substitute for the prayer for special relief, and authorize relief of a different nature when that specially prayed is denied. . . ." 21 C.J. 679, par. 858.
The decree of the court below will therefore be affirmed.
Affirmed.