
    Graham v. Hendren.
    Decided, Oct. 29th, 1816.
    i. Specific Performance — Sale of Land — Mistake as to Identity of Land. — Where it appears that, at the time of entering' into a contract for sale of a tract of land, there was a misunderstanding between the parties, as to the identity of the land, to which the contract related, a Court of Equity, in its discretion, ought not to interfere by decreeing a specific performance.
    See Calverley v. Williams, 1 Vesey, jr. 211.
    On the 6th day of August, 1811, an agreement was reduced to writing, between 'Thomas Taylor of the city of Richmond, (who acted in behalf of John Graham,) and Patrick Hendren of the county of Charles city, stating that Taylor had purchased of' Hendren “a tract of land in the state of Ohio, containing twelve hundred acres,more or less, at three dollars per acre. ” The land was described as situate “near the town of Williamsburg, and as the same land that was patented in the name of Col. Holt Richardson of King William county lately deceased.” Eighteen hundred dollars of the purchase money were to be paid when a complete title was ready to be made by the said Hendren; and the balance in three equal six months’ installments.
    A Bill was filed by Hendren, in the Superior Court of Chancery for the Richmond district, against Taylor and Graham, offering to make a conveyance of three surveys of land, containing four hundred acres each, which lay in the neighbourhood of Williamsburg, adjoining each other, and therefore might properly be considered as one tract. He alleged that Col. Richardson had the tract, containing twelve hundred acres, divided into three equal lots of four hundred acres each, for the purpose of selling to emigrant purchasers; “but that tract was the only one, the said Richardson ever owned in the State of Ohio, and the only one, that his heirs had at that time, or since;” that the said land, being divided into three lots, was made a pre-tence by Taylor and Graham to avoid a fair and honorable contract, upon the false allegation that it was not the same tract of land which Taylor had purchased of Hendren. He ^therefore prayed a decree to compel a specific performance of the agreement.
    The defendant Graham, in his answer, said that Walter Dunn of the State of Ohio was jointly interested with himself in the purchase, and ought to be a party to the suit: that the lands, which Hendren offered to convey were not the tract which they intended to purchase, and understood him as agreeing to convey; that in truth there were four other tracts, in the same neigh-bourhood, also held by the same Col. Richardson ; one of which was originally surveyed for twelve hundred acres, and was greatly superior in value to the three surveys of four hundred acres each; which tract was known by the name of the twelve hundred acre tract, though it had been reduced to eleven hundred and fifty acres, in consequence of a loss occasioned by an interfering survey; and that this was the tract in contemplation of the parties, when the contract was made. This allegation was supported by the answer of Taylor, who declared himself to have been an agent-only, without any interest in the controversy, or compensation for his agency.
    Chancellor Taylor (“being of opinion that the agreement in the proceedings mentioned ought to be specifically performed, and the defendant John Graftam having in his answer declared his readiness to perform it, if such should be the Court’s opinion,) decreed that, on the plaintiff’s-depositing with the Clerk of the Court, a good and sufficient deed, with general warranty, for the tract of land in the Bill and agreement mentioned, to be delivered to the said John Graham on his making the payment herein after mentioned, the said John Graham do pay unto the plaintiff the sum of three thousand six hundred dollars, with interest on eighteen hundred dollars, part thereof from the 4th day of December, 1811, until paid, on the farther sum of six hundred dollars from the 4th of June, 1812; on the farther sum of six hundred dollars from the 4th of December, 1812; and on the farther sum of six hundred dollars from the 4th of June, 1813, until paid, and his costs:” — from which decree Graham appealed.
    Call and Williams for the Appellant.
    Wickham for the Appellee.
    
      
       Contracts — Specific Performance — Rescission—Mistake. — Glassell v. Thomas, 3 Leigh 129, citing the principal case, and Chamherlalne v. Marsh, 6 Munf. 283, says that th e "books abound with cases in which contracts have been rescinded, or their specific execution refused, because of an essential mistake in the thing contracted for. To the same effect, the principal case is cited in Ferry v. Clarke, 77 Va. 408.
      For.it is well settled that where, in an agreement, a mutual mistake is made by both parties, in a matter which is the cause and subject of the contract, that is, in the substance of the thing contracted for, no fraud being imputable to either party; such mistake is good ground in equity for rescinding the agreement even after it has been fully executed by conveyances by both parties. Glassell v. Thomas, 3 Leigh 113, 125, citing principal case; Chamberlaine v. Marsh, 6 Munf. 283; Tucker v. Cocke, 2 Rand. 66; Thompson v. Jackson, 3 Rand. 504; Lamb v. Smith, 6 Rand. 552.
      But it is also well settled that such mistake must be of the substance of the thing contracted for; it must be such that the purchaser cannot get what he substantially bargained for, or the vendor would be compelled to part with what he had no idea of selling. Butcher v. Peterson, 26 W. Va. 451, citing principal case. See principal case also cited in Fearon Lumber, etc., Co. v. Wilson, 51 W. Va. 30, 41 S. E. Rep. 139.
      See further, monographic note on Specific Performance” appended to Hanna v. Wilson, 3 Gratt. 243.
      Same — Same—What Necessary for. — To justify a decree for specific performance, the contract must be clearly and distinctly ascertained, or the court cannot decree. Lowry v. Buffington, 6 W. Va. 256, •citing principal case as authority. If suits of this character, unless the contract stated in the bill is established by a clear preponderance of the evidence, the court will not enforce It. If the evidence is conflicting and it' is not clear that a contract was in fact made, a bill for specific performance will be dismissed. Gallagher v. Gallagher, 31 W. Va. 13, 5 S. E. Rep. 299.
      The principal case is also cited in Mathews v. Jarrett, 20 W. Va. 422; Ensminger v. Peterson (W. Va.) 44 S. E. Rep. 222.
    
   ^Tuesday, October 29 th, 1816.

JUDGE) ROANE)

pronounced the Court’s opinion; that, upon the testimony, there was such a misunderstanding between the parties, at the time of entering into the written contract in the proceedings contained, as to the identity of the land, to which that contract relates, that a Court of Elquity ought not, in its discretion, to interfere by decreeing a. specific performance. The Court is also of opinion that Walter Dunn ought to have been a party to the Appellee’s Bill; büt, as he was not made a party by him, after his interest was-fully disclosed by the answers; as, from the case, as it now appears, the Appellee has no right to a decree against him, if he were before us; and as, generally, the adding of other defendants is in favour of those who were originally convented; the Court does not think it proper to retain the cause for the purpose of making Dunn a party. The decree is therefore reversed, with costs, and the Bill dismissed.  