Sec. 767.

As to when the mistake must be mutual. In order to have a reformation of a written instrument on the ground of mistake, in the absence of fraud, the mistake must be shown to have been mutual. Trustee St. Clare F. Acad. v. Delaware Ins. Co., 93 Wis. 57 (66 N. W. Rep. 1140); Green v. Stone, 54 N. J. L. 387 (34 Atl. Rep. 1099; 55 Am. St. Rep. 577). When a mortgage has been executed without any previous agreement between the parties to it for its execution or as to what lands are to be embraced, the mortgagee cannot maintain an action to reform it by including other lands in it which both parties intended to include and believed had been included in it, neither party having any knowledge of the intent or belief of the other. Citizens' Nat. Bank v. Judy, 146 Ind. 322 (43 N. E. Rep. 259).

Sec. 768. Reformation of mortgages. The fact that a mortgage was given to secure a pre-existing debt will not defeat an action to correct a mutual mistake in it except as against subsequent purchasers without notice. Citizens' Nat. Bank v. Judy, 146 Ind. 322 (43 N. E. Rop. 259). The court says: "It seems clear that any consideration that would support a mortgage would be sufficient to entitle the mortgagee to maintain an action to correct a mutual mistake in the same, against the mortgagor and those holding under him as purchasers with notice and their creditors. Welton v. Tizzard, 15 Ia. 495; Rhodes v. Outcalt, 48 Mo. 367; Brocking V. Straat, 17 Mo. App. 296, 304; Partridge v. Smith, 2 Biss. 183, 187 (Fed. Cas. No. 10787); Baker v. Pyatt, 108 Ind. 61 (9 N. E. Rep. 112); 15 Am. & Eng. Enc. Law, 681, note 1; 1 Ping. Chat. Mortg., § 530." Applying Cal. Civ. Code, § 3399, which provides that "when through fraud or a mutual mistake of the parties, or a mistake of one party which the other at the time knew or suspected, a written instrument does not truly express the intention of the parties, it may be revised on the application of a party aggrieved, so as to express that intention, so far as it may be done without prejudice to the rights acquired by third parties in good faith," it is held that a mortgage of homestead lands duly signed and acknowledged in the statutory form by a husband and wife, which by mistake of the mortgagee known to the mortgagors

did not include all the lands they had agreed to mortgage, may be reformed so as to include such lands, and such action can not be objected to on the ground that the mortgage as reformed would be a conveyance of homestead lands not acknowledged by the wife according to the statute. Temple, J., dissenting. Stevens v. Holman, 112 Cal. 345 (44 Pac. Rep. 670; 53 Am. St. Rep. 216). Equity will correct a mistake in a mortgage whereby property intended to be included therein was inadvertently omitted, even after the mortgage has been foreclosed, and the property described in it has been levied upon and sold under the mortgage fi. fa. ; and after such correction the lien of the mortgage on the omitted property will be superior in dignity to that of a judgment obtained after the mortgage was originally executed, and before its reformation. This is so, although the judgment was founded upon a debt in the contracting of which by the debtor creditor was extended to him upon the faith of his apparent unincumbered ownership of the omitted property. Phillips v. Roquemore, 93 Ga. 719 (23 S. E. Rep. 855).

Sec. 769. Reformation of conveyance by married women. A married woman's conveyance which is defective because the statutory mode for its execution has not been complied with cannot be reformed. Cannon v. Beaty, 19 R. I. 524 (34 Atl. Rep. 1111). The court say: "We have not been referred to any case, and we have found none, where the deed of a married woman of property subject to marital rights, which was defective in omitting compliance with a statutory condition, has been reformed in equity. In such a case the power to convey at all is wholly statutory, and so, as is said by Judge Story (1 Story, Eq. Jur., § 177), equity must follow the law, be the consideration ever so meritorious.' Kerr, Fraud and M. 444 repeats the same language and adds: 'It may be stated as generally true that the remedial power of equity does not extend to the supply of any circumstances, for the want of which the legislature has declared the instrument void, for otherwise equity would defeat the very policy of legislative enactments.' The same doctrine is stated in 2 Pom. Eq. Jur., § 834, as follows: The defective execution of statutory powers, in the failure to comply with the prescribed

aided by equity.'

requisites, cannot be
refused to reform such deeds in many cases.

The courts have
In Martin v.

Dwelly, 6 Wend. 9 (21 Am. Dec. 245), the question is fully discussed in the court of errors of New York. In Carr v. Williams, 10 Ohio 305 (36 Am. Dec. 87), the judge delivering the opinion says: 'I believe no case can be found where a mistake in a deed of a married woman has been rectified against her.' Grapengether v. Fejervary, 9 Ia. 163 (74 Am. Dec. 336); Dickinson v. Glenney, 27 Conn. 104; and Gebb v. Rose, 40 Md. 394, are to the same effect." Applying 1 Hills' Wash. Code, § 1410, which provides that "contracts may be made by a wife, and liabilities incurred, and the same may be enforced by or against her to the same extent and in the same manner as if she were unmarried," it is held that a mortgage by a married woman may be reformed so as to correct a mutual mistake therein concerning the description of the property. Murdock v. Leonard, 15 Wash. 142 (45 Pac. Rep. 751).

Sec. 770. Rescission instead of reformation. Where, by the terms of an executory contract, the vendor agreed to convey more land than he subsequently conveyed by the deed made in fulfillment thereof, and the executory contract expressed the agreement the vendee intended to make and supposed he had made, and the deed expressed the contract the vendor intended to make and supposed he had made, and both parties acted in good faith and neither did anything to mislead the other, it was held that as the minds of the parties never met, an action to reform the deed could not be maintained and that the only equitable action which could be maintained is one for rescission. Blancharel v. Patterson, 64 Minn. 454 (67 N. W. Rep. 356). The court say: "Under the circumstances, rescission is the only equitable relief which could be granted. 2 Pom. Eq. Jur., § 870. That each party was mistaken as to the contract he thought he had made, when each thought he was making a different contract from what the other supposed he was, is not the kind of mutual mistake which equity will reform. Equity has jurisdiction to reform written instruments in but two well-defined cases: (1) Where there is a mutual mistake,-that is, where there has been a meeting of minds, an agreement actually entered into, but the contract,

deed, settlement, or other instrument, in its written form does not express what was really intended by the parties thereto; and (2) where there has been a mistake of one party accom. panied by fraud or other inequitable conduct of the remaining parties.' 3 Pom. Eq. Jur., § 1376. The executory contract is merged in the delivered and accepted deed, and has become junctus officio. That the deed differs from the contract as to the amount of land conveyed raises no presumption that the deed does not express the last or real intention of the parties, and it requires additional evidence to make out a case for reforming the deed. Whitney v. Smith, 33 Minn. 124 (22 N. W. Rep. 181), and cases cited."

tion.

Sec. 771. Who may maintain an action for reformaWhen a mistake occurs in a series of conveyances, the last vendee may have the deed corrected. Tillis v. Smith, 108 Ala. 264 (19 So. Rep. 374). Citing, Blachburn v. Randolph, 33 Ark. 119; May v. Adams, 58 Vt. 74 (3 Atl. 187); Greeley v. De Cottes, 24 Fla. 475 (5 So. Rep. 239); Parker v. Starr, 21 Neb. 680 (33 N. W. Rep. 424). The principal case holds that this principle does not deprive a grantee, who has conveyed to another, of his right to have a mistake in the conveyance to him corrected. A deed of a portion of an estate in common made by one cotenant, which on account of the fraud of the grantee contains a misdescription, may be reformed as to such description by another cotenant injuriously affected thereby, although he was not a party to such deed, even after the death of the grantor and his legal representatives are proper parties to such action. Prater v. Bennett, 98 Ga. 413 (25 S. E. Rep. 510).

A com

Sec. 772. Complaint-Proof necessary. plaint to reform a description in a mortgage sufficiently alleges a mutual mistake where it alleges that the parties to the transaction intended that the mortgage should cover certain property, but "that, in drawing said mortgage, the description recited therein was erroneously mentioned," and another tract of land described; and in such an action evidence that the defendants received the rents from, had insured in their own names, and offered to effect a loan thereon and

to convey, the property which the plaintiff alleges should have been described in the mortgage, sufficiently shows that they own such property. Murdoch v. Leonard, 15 Wash. 142 (45 Pac. Rep. 751). Purchase money notes given for real estate will not be reformed on the ground of a mistake unless it be clearly and satisfactorily proved. Donaldson v. Levine, 93 Va. 472 (25 S. E. Rep. 541). To justify the reformation of a deed executed, delivered, accepted, and acted upon, on the ground that it does not correctly express the agreement made by the parties, the proof must be clear and convincing, and upon testimony that it is unexceptional, both with regard to the agreement actually made by the parties and the mutuality of the mistake through which a different agreement was put in the deed. Green v. Stone, 54 N. J. Eq. 387 (34 Atl. Rep. 1099; 55 Am. St. Rep. 577). Reformation of an instrument for the purpose of correcting omissions claimed to have been made by mistake cannot be had where the parties had no knowledge of the omitted matters at the time the instrument was executed. Moore v. Graves, 97 Ia. 4 (65 N. W. Rep. 1008).

In a recent case the supreme court of New York say: "In an action for the reformation of a written instrument upon the ground of mistake, the party seeking the reformation must prove that there was a mistake by evidence that is clear, positive and convincing. It is to be presumed that the written instrument was carefully and deliberately prepared and executed, and therefore is evidence of the highest character, and will be regarded as expressing the intention of the parties to it until the contrary appears in the most satisfactory manner. The grade and degree of proof required to entitle a plaintiff to relief of this character has been many times con. sidered by the courts of England, the federal and the various state courts of the United States, and their decisions as to the nature of the proof required, show that it must be of the most substantial and convincing character." Christopher & T. St. R. Co. v. Twenty-Third St. Ry. Co., 149 N. Y. 51 (43 N. E. Rep. 538). Citing, Ford v. Joyce, 78 N. Y. 618; Meade v. Insurance Co., 64 N. Y. 453; Nevius v. Dunlap, 33 N. Y. 676; White v. Williams, 48 Barb. 222; Gillespie v. Moon, 2 Johns, Ch. 585 (8 Am. Dec. 559); Boardman v.