tion of said six years, the orator tendered to him the said WINDHAM, February, $600, together with the rent for the sixth year. 1843.

0.

Field.

The answer was traversed, and testimony taken. Among Goodell the witnesses were the said Lewis Robbins and two daughters of the orator, referred to in the opinion of the court. The import of the testimony sufficiently appears in the opinion.

A. Keyes, and D. Kellogg, for the orator.

1. If a deed, through fraud or mistake, is not made according to the agreement of parties, it may be corrected in chancery; and parol testimony is admissible to prove such fraud or mistake. 1 Mad. Ch. 49, and cases cited; Langly v. Brown, 2 Atk. 203; Gillespie v. Moon, 2 Johns. Ch. R. 585; Gales v. Green, 4 Paige. R. 355; Ball v. Storie, 1 S. & S. R. 355; same case, 1 Cond. Ch. R. 106; Am. Ch. Dig. 290.

2. Such parol testimony is admissible where the bill seeks a correction of the instrument, and a specific performance of the contract thus corrected. 1 Story's Equity, 175; Keiselbroek v. Livingston, 4 Johns. Ch. R. 144; Gillespie v. Moon, 2 Johns. Ch. R. 585; Ball v. Storie, 1 S. &. S. 210; 1 Cond. Ch. R. same case, 106.

3. If it was a conditional contract to convey, and the time was not material and not of the essence of the contract, there is still an equity. Campbell v. Worthington, 6 Vt. R. 455 especially if it is apparent that the transaction assumed this shape to disguise a loan. 2 Story's Equity, 285.

W. C. Bradley, for defendant.

This is not a bill in favor of Robbins to enforce any provision, or trust, in consideration whereof he delivered the deed, nor for any fraud practised on him, in obtaining the deed, nor for anything growing out of the privity between him and the defendant; of course, he, not being a party, his intentions or motives are of no consequence in this suit.

On the other hand, it is evidently to establish and enforce a pretended agreement for the conveyance and sale of land from Field to Goodell, who was a stranger to the title, and from whom no consideration moved. If such an agreement, by parol, had been made, in the fall of 1835, or even so late

WINDHAM, as the time of the execution of the deed from Robbins, it February, could not have been enforced by Goodell, either as a trust, or otherwise, if it had not been reduced to writing.

1843.

Goodell

Field,

But the agreement having, at a subsequent time, been reduced to writing, cannot now be explained away or contradicted by parol testimony, so long as the writing subsists, that instrument being taken, in equity, as well as at law, as the exponent of the final intention of the parties.

The opinion of the court was delivered by

WILLIAMS, Ch. J. — The object of the bill, in this case, was to correct a written lease, executed by the defendant, to the complainant, and make it conformable to the agreement of the parties, and for a specific performance of the same, according to such agreement. The material allegations in the bill are denied in the answer. The defendant insists that the lease was made according to the understanding of the parties, and was read to, and understood by, the orator. The lease, which is, also, a contract of sale, was made in January, 1836.

It appertains to the jurisdiction of a court of equity to correct and reform written instruments, when, through mistake or fraud, they are made to convey a meaning which the parties did not intend; and, as a necessary consequence of this jurisdiction, they must receive testimony to show what the parties did intend, and wherein consists the mistake. Parol proof is received for this purpose. As the writing is, usually, the best evidence of the intention of the parties, it is supposed, whatever agreements they may have contemplated or conversed about, they understood what they are about to do, when they entered into a written contract. The evidence, therefore, must be clear and strong, and such as to leave no doubt of the mistake. Lord Thurlow said, in Ingraham v. Childs, 1 Bro. 94, that it should be proved, as much to the satisfaction of the court as if it were admitted; and in Shelburn v. Inchiquin, 1 Br. 338, that it must be proved by strong, irrefragible evidence; and in. Gillespie v. Moon, 2 Johns. Ch. 585, where Chancellor Kent reviews all the authorities the subject, he says upon "the cases concur in

the strictness and difficulty of the proof" required.

In the present case, there was only one witness present,

at the time the farm was deeded to the defendant- Mr. Robbins, and he swears to a different agreement from the one insisted on by the defendant. The testimony of Robbins may be said to be corroborated by that of the daughters of the complainant, who swear to a conversation in the fall of the year 1835; so that if there had been no writing, we might have considered, there was sufficient testimony to establish the agreement as testified to by Mr. Robbins. There is, however, not sufficient evidence to show any mistake or fraud in the execution of the lease. One of the daughters of the complainant, says, the lease was not read as stated by the defendant in his answer. This, at most, is negative testimony; and it is hardly probable the complainant should have executed the lease and not know its contents. The lapse of time since this business was transacted, before any steps were taken by the complainant to correct the terms of the lease, and establish the same according to his statement of the contract, the testimony being all from the family -one of them being the son-in-law of the complainant, the other two his daughters, one of the age of 15, and the other of the age of 12, only, at the time, it being mere hearsay, the improbability that the agreement should have been varied in the manner alleged, as the only difference is whether the sum of 600 dollars should be paid at the end of the six years, or by instalments, and the little inducement and benefit there could have been to the defendant, to alter it, either one way or the other are strong and powerful arguments against the application of the orator. The testimony is very slight, instead of being clear, strong, and irrefragible, as it should be, to induce a court to alter, reform, or correct a written instrument.

Upon the contract, as it is written, the complainant is not entitled to relief. No attempt has been made on his part, to perform the same, according to the terms, and no excuse is offered for this neglect.

The decree of the chancellor, dismissing the bill, is, therefore, affirmed, with cost.

WINDHAM, February, 1843.

Goodell

v.

Field.

Trover may be maintained by an officer, against a debtor, for property which had been owned and possessed by the debtor, and receipted by him to the officer, as attached, though it was not actually seized, or even seen, by the officer.

THIS was an action of trover for three hundred and fifty sheep. Plea, not guilty. Issue to the court.

On trial, the plaintiff read in evidence the following receipt and endorsement thereon:

"Hartford, Nov. 14, 1839.

"Received of Moses Montague, deputy sheriff, three hundred and fifty sheep, of the value of six hundred dollars, which we agree to redeliver on demand. Said property said Montague has this day attached on a writ of attachment in favor of the bank of Woodstock v. Daniel Marsh, Leonard Marsh, and Thomas W. Pitkin, demanding in damages eight hundred dollars. Returnable at November term, 1839, of Windsor county court. (signed) DANIEL MARSH. GEORGE UDALL."

"Hartford, Aug. 13, 1840. "I acknowledge a legal demand of the within described property by a proper officer.

(signed) DANIEL MARSH." It appeared that Moses Montague was the deputy of the plaintiff, then sheriff of Windsor county; that said Montague duly returned the writ mentioned in said receipt, with his

Pettes

Marsh.

return thereon, that the same was served by the attachment WINDSOR, February, of 350 sheep; that such proceedings were thereon had, that 1843. said bank recovered a judgment at the May term of Windsor county court, 1840; and, that execution was issued on said judgment, and, within thirty days, was delivered to said Montague, still deputy sheriff, who within the life thereof, on the 13th day of August, 1840, demanded the said sheep of the defendant whereon to levy said execution, but the same were never delivered to, or obtained by, the officer, and the execution remained unsatisfied.

It also appeared that, at the time of the service of said writ, the defendant owned, and then had on his farm, five hundred sheep; that, on the 16th of July, 1840, having become insolvent, he made an assignment of his property to John Strong, for the benefit of certain preferred creditors, and that, among that property he delivered said Strong 199 sheep, being all he had left of the sheep he owned in November, 1839. What had become of the rest of the sheep did not appear. It also appeared that when said Montague came to serve said writ, it was in the evening, and he did not see said sheep or take any possession thereof; and that it was on that occasion, and at that time, that the receipt was signed by the defendant and delivered to said Montague.

Upon these facts the court rendered judgment for the plaintiff to recover the amount of the execution in favor of said bank, it being less than the value of the 350 sheep. To this decision the defendant excepted.

Charles Marsh, for the defendant, admitted that if the action had been assumpsit on the receipt, the defendant would have been restrained from contradicting, by evidence, the actual attachment of the property, and its delivery to him by the officer, but would have been concluded by the terms of the receipt; but he maintained that it was competent to the defendant to go into such showing, and it would be a good defence, in an action of trover.

Property, either absolute or qualified, he contended, was essential to maintain trover. In this case, no such property existed in the officer, as the case shows that the sheep were not actually attached by him, and that he had no possession. of them. What is an attachment? Chief Justice Parsons,