The bill in this cause was filed on the equity side of the circuit court of Jefferson against appellant Burgin as sole defendant, and sought reformation and specific performance of the contract appearing in the statement of facts. Demurrer to the bill was overruled, and defendants have appealed, assigning errors separately and severally.
Complainant's (appellee's) bill avers that —
"It was the purpose and intent of the parties to said above set out contract that respondent [Burgin] secure from orator a release of his lien claim against the estate of the said H. W. Crook, deceased, which claim was of great value, and in consideration for the relinquishment of orator's rights against said estate, to procure the payment and satisfaction of the mortgage debt in favor of the said J. E. Brown on said property."
The further averment is that Pauline Sugg, complainant's sister, owed the debt *Page 272 and owned the property, which is described in the bill, "and that by mistake or inadvertence said real estate, so mentioned in said contract, is described as the property of your orator, and that by mistake or inadvertence it is stated in said contract that your orator borrowed," etc.
Construing the first averment of the bill on the subject most strongly against the pleader, the mistake or inadvertence averred may have been the mistake or inadvertence of one only of the parties to the contract — may have been unilateral. True, a later averment is that "it was the purpose and intent of the parties," etc., as shown by the quotation first above, but it still does not appear that the bill complies with that strict rule of pleading which, where reformation is sought, requires a very great degree of particularity of averment in every respect. Dexter v. Ohlander, 95 Ala. 467, 10 So. 527. It is necessary to aver facts showing how the mistake was made, whose mistake it was, and what brought it about, so that the mutuality may appear. 34 Cyc. 974.
Turning to more obvious defects in the bill — defects of substance uncovered by the general demurrer (McDuffie v. Lynchburg Shoe Co., 178 Ala. 268, 59 So. 567) — and conceding even that in general the promisee may have specific performance of a contract made for the benefit of another, on the facts alleged specific performance of the contract, when reformed, cannot be effectively decreed without the presence of Brown, and for that reason, no doubt, Brown has by amendment been made a party defendant. But Brown was not privy to the contract the bill seeks to enforce: it neither created nor transferred any right as for or against him; nor is there any juridical reason why he should be subjected to the burden of litigation concerning a contract to which he is a stranger. As against him the bill is without equity.
The case falls then within the category of cases in which the court must refuse a decree for specific performance because performance depends on the consent of a third person; defendant, appellant, would be required to procure "the surrender or cancellation of said note and the satisfaction of said mortgage on the record thereof," and, in the event of failure therein, "to pay such amount" to complainant, or, failing that, to submit to a money judgment. In ordinary circumstances there might be something of merit in the appeal to equity to have the record of the mortgage satisfied after payment of the debt thereby secured: but in no case could that obligation be placed on any one unless standing in Brown's relation to the mortgage, and in the circumstances of the present case it cannot be placed upon him for reasons which have been sufficiently stated. Hence our conclusion that the case presented by the bill, in so far as it seeks specific performance, falls within the influence and control of the principle which is stated as follows in Fry's Specific Performance (5th Ed.) § 999:
"As the consent of a third party is, or may be, a thing impossible to procure, a defendant who has entered into a contract to the performance of which such consent is necessary will not, in case such consent cannot be procured, be decreed to obtain it, and thus perform an impossibility."
To the same effect see 5 Pom. Eq. Jur. (4th Ed.) § 2179.
Another feature of the bill, quite anomalous, to which the demurrer calls attention in a way, is that Pauline Sugg, for whose benefit, according to the prima facie intendment of the facts averred, appellee seeks to enforce the contract, is not made a party defendant, nor is there averment of facts which would show appellee to be the real beneficiary.
The bill is defective, and the demurrer should have been sustained.
Reversed and remanded.
ANDERSON, C. J., and GARDNER and BROWN, JJ., concur.