
    BEVERLY COLEMAN v. JOHN COLEMAN.
    A mistake in a deed will be corrected only upon the terms, that the person applying therefor will give effect to such counter equities in favor of the bargainor as may arise out of the transaction.
    Original Bill, for the reformation of a deed, filed in the Court of Equity for Wilkes county, Pall Term, 1858, and set for hearing, and transferred to this court by consent of parties, at Spring Term, 1860.
    The facts necessary to an understanding of the opinion are set forth therein.
    
      Clement, for the complainant.
    
      Caldwell, for the defendant.
   Reade, J.

It clearly appears that the draftsman of the deed in question did, by mistake, insert the word “poles,” as often as the same appears in the deed, instead of the word chains which was intended to be used. In this way the lines are much too - short, and include a part only of the land which it was intended to convey. It is therefore a fit case for the correction of the deed.

The defendant, however, sets up certain equities, which he insists ought to rebut the equity of the complainant.

1. He says that the deed, although on its face absolute, was, in. fact, but. a. mortgage to secure a certain sum which the complainant advanced for him-, in order to relieve the land from a prior incumbrance, and that for this the complainant has been fully reimbursed. The evidence does not sustain this allegation, which, moreover, is inconsistent with the other equity set up by the defendant.

2. He also says that it was verbally agreed, as part of the transaction, in the course of which the deed was executed, that the complainant should allow him and his wife to live upon the land during their lives, and to be supported out of its reuts and profits. This allegation we find to be true, being supported by the evidence and indeed, in effect, admitted by the complainant..

It would he inequitable to reform the deed, as prayed for, and thereby place the defendant in the power of the complainant, without securing to the-defendant the-right which he has established.

We are therefore of opinion that the deed in- question should be corrected by substituting the word “ chains-’'’ for the word “poles,” wherever it occurs in the deed, upon:the terms that- the complainant execute a conveyance of such part of the land remaining unsold to Howard, as the defendant may designate, in trust, that the defendant and his wife he permitted to- live upon the land during- their lives, and he supported out of the rents and profits-..

Each party will pay his own costs.

There may be a. decree in conformity with> this* opinion.

Per Curiam.

Decree accordingly.  