
    Helm vs. Wright and Graham.
    1. It Is the peculiar province oí a court of Equity to rectify mistakes.
    2. Where an obligor in a delivery bond by mistake acknowledged in the bond that the property therein set forth belonged to the defendant in the execution, when in fact it belonged to himself: Held, that the court had the power to reform such bond and to restrain the obligee in such bond from pleading it to tho prejudice of the rights of the obligor.
    On the 29th day of January, 1839, George W. Graham recovered three judgments - before Willis Crutcher, a justice of the peace for the county of Williamson, against Benjamin C. Helm; one for the sum of $>140 81, another for $125 69, and the third for $160 90. These judgments were stayed according to the statute, by James Helm. On the 23d day of April, 1839, James Helm by reason of his own debts, and responsibilities for others, being in failing condition, executed a deed of .trust to Thomas Helm to indemnify said Helm against losses and responsibilities incurred for him by Thomas Helm, on various notes, for about the sum of $600. There did not seem to be any reasonable doubt about the good faith of this transaction. This deed was acknowledged on the 23rd day of April and registered on the 27th. At the expiration of the stay, executions were issued on said judgments and placed in the hands of William W. Wright, a constable of Williamson county, who levied them on the property set forth in the deed of trust, to wit, a wagon and five horses and harness, the principal being insolvent. This property was in the possession of James Helm at the time of the seizure by the constable. Thomas Helm asserted his claim to the property. Graham and the constable seemed to be aware of the fact that the property had been conveyed to Thomas Helm, by deed of trust. This created some squabbling in regard thereto. James Helm, however, was desirous of retaining the property till the day of sale, and desired that Thomas Helm should be his security for the delivery of it. Thomas Helm seemed to be in some doubt about it, but on being informed, that it could not affect his right to the property consented to enter into a bond for the delivery of the property on the day of sale.
    Wright and James Helm procured one Miller to draw up a bond for the delivery of the property, which was signed by Thomas and James Helm, the condition of which, was in the following words:
    “The condition of the above obligation is such, that whereas, on the 30th day of May, 1839, W. W. Wright, one of the constables of the county of Williamson, levied on the following described. property of said James Helm, to wit, five head of horses and five set of gear, valued at $600, to satisfy three executions which issued from judgments, which George W. Graham recovered against B. C. Helm, and James Helm, as stay before Willis Crutcher, one of the justices of the peace, for said county, on the 29th day of January, 1839.
    “Now, if the said Thomas and James Helm shall deliver the said property on the 20th day of June, 1839, at the court house, in the town of Franklin, then this bond to be void, otherwise, to remain in full force and virtue.”
    Wright did not dictate the terms of the bond, and Miller, who drew it, knew of the existence of the deed of trust, and had no intention, as he alledges, to affect the right of Thomas Helm to the property by the phraseology used, and it does not appear, that Thomas^Helm read the bond, or scrutinized its language.
    The bond, thus executed, was delivered to the constable, and James Helm, on the day of sale appointed, delivered the property. Thomas Helm appeared and forbid the sale. It was, however, sold and the proceeds appropriated to the satisfaction of Graham’s executions. Thomas Helm instituted an action of trespass against Wright and Graham, at the July term, 1839, of the Circuit court of Williamson county, for the recovery of damages for the seizure and conversion of said property. The defendants set out the delivery bond and pleaded it as an estopel of the plaintiff’s claim of right to the property therein specified.
    On the 14th day of March, 1840, Helm filed this bill in the Chancery court at Franklin, Williamson county, setting forth his claim to the property by virtue of the deed of trust, setting but the delivery bond and alledging that the acknowledgment therein contained, that said property specified, was the property of James Helm, was made and signed by him through mistake, contrary to the truth of the fact, and without the slightest intention to affect his right to the property, and praying that the mistake in said bond should be corrected, or that the defendants should be perpetually enjoined from setting up the recital in said delivery bond in bar of plaintiff’s right.
    Wright and Graham filed their joint answer on the 24th of April, 1840, charging the deed of trust to be fraudulent, and alledging that the statement made in the bill, that the recital complained of in the bond, was made through mistake, was false. The complainant filed a general replication; and proof was taken exhibiting the facts to be as above set forth.
    The cause came on for final hearing at the October term, 1840, before Chancellor Bramlett, who being of the opinion that there was no fraud practiced in the obtaining of said bond, and that “there was not such a mistake committed by the complainant in executing said bond as would authorise the interposition of a court of Chancery, in granting relief against said bond,” dismissed the bill and ordered that each party pay his own costs, &c. Complainant appealed to the Supreme court.
    
      J. Marshall, for complainant.
    A Court of chancery will reform deeds, when they do not carry out the intentions of the parties in making them. 1 Eng. Exch. Reports, 211. Ball vs. Storie, 1 Con. Eng. Ch. Rep. 106:2 Johnson, Ch. Rep. 585: Jeremy’s Eq. Jurisdiction, 367,8,9, — 484,491,499: 1 Story’s Eq. page 165: See 2 Sch. and Lef. 501, 2: 2 Vesey, Sr. 100: 6 Vesey, 333: 3 Yerger, 382: Cooke, 437: 1 Brown, C. C. 341: See also, 2 Story Eq. 187, 9; Eden on Inj. 407, et Seq. 1 Sch. and Lef. 428: Jeremy, 338,343.
    
      E. H. Ewing, for complainants,
    cited, 1 Story, 165, 167, 170.
   Gkeew, J.

delivered the opinion of the court.

This bill is brought to reform a bond, executed by the complainant, for the delivery of property which had been levied on by a constable, on the ground of mistake, or to restrain the defendants from insisting upon it, in a suit, in a court of law, because of the occun’ence of a mistake, whereby it was varied from the intention of the party by whom it was executed. The bond in which the mistake was alledged to exist, recites as follows, viz: “The condition of the above obligation is such, that on the day and date above written, W. W. Wright, one of the constables of said county hath levied on the following described property of the said James Helm,” &c. The execution by virtue of which the levy was made, was against James Helm; and Thomas Helm, the complainant, claimed the property as his own. The delivery bond, was executed by both James and Thomas Helm. Thomas Helm claimed the property mentioned in the delivery bond as his own, both before and after the levy was made; and about the time the bond was executed he mentioned his claim, and said he would bring suit for it. Suit was brought by him, and the above recital in the delivery bond was pleaded as an estopel. This bill is brought to reform the bond, and to restrain the defendants from insisting upon it, as an estopel.

It is not denied, that a court of equity will relieve against mistakes. "In Jeremy, Equity Jurisdiction, 268, it is said, “that the rectifying mistakes is the peculiar province of a court of Equity, and that parol evidence is admissible to assist the court in rectifying a mistake, not apparent upon the face of the deed.” Judge Story, in his Equity Jurisdiction, vol. 1, page 167, says, “a court of Equity would be of little value, if it could suppress only positive frauds; Únd ledv'é mutual mistakes, innocently made, to work intolerable mischiefs, contrary to the intention of parties. It would be, to allow an act, originating in innocence, to operate ultimately as a fraud, by enabling the party, who receives the benefit of the mistake, to resist the claims of justice.” There is no question, therefore, but that a court of Equity will relieve against a mistake of fact, when the words employed in an agreement, do not express the intention of the parties. ‘But it is insisted by the defendants in this case, that here, there is no mistake of fact, but that the mistake, if any, is one of law; that the ‘ complainant conveyed in the bond, the idea he intended to convey; but that, if mistaken at all, it was as to the legal consequence, and not as to a fact stated.

If this proposition be true, the complainant cannot be relieved. For it is certainly true, that if the party intended to use the words in the sense which they really do convey, if the thought they express, was the idea he intended to communicate, there is no mistake of fact, but a mistake of the legal consequence, as, if a party release a joint obligor, although he may not intend thereby to re* lease the co-obligor, and may be mistaken as to the legal conse* quence of the act, yet, there is no mistake as to the fact. He did intend to use the words in the release, in the sense they convey, but he intended it to be a release of one only. So here, if Thomas Helm intended to admit that the property levied on, belonged to James Helm, although he might not have intended thus to furnish matter, which would constitute a bar to his action, and as’to such consequence, might be mistaken, yet such mistake could not be relieved against,-because it would be a mistake of law, and- not of fact.

But, in this case, the mistake was not as to the effect of the admission, but was, as to the fact admitted. The bond recites, that the constable had levied on the following property of James Helm, &c. Now, the thing admitted is, the fact of the ownership of the property. Whether James Helm was the owner of the property or not, was not a legal consequence from any fact stated, but was itself the fact admitted. The proof shows beyond all doubt, that the complainant could not have intended to state this fact. He had denied it previously to the levy, had asserted his ownership after the levy was made, and about the time he was executing this paper, declared his intention to sue. The mistake is therefore clearly proven, and is plainly a mistake of fact. The case of Ball vs. Storie, 1 Sim. and Stuart, 210, 1 Con. Eng. Ch. Rep. 109, is analogous to this. By the memorandum inserted in the agrees ment, the defendant intended to become personally responsible for the £20Q only, but it was so worded as to make him liable in addition for the £4000. The vice Chancellor said: “This is tho Common case of an instrument to'be reformed in Equity, because the drawer, has by mistake, miscarried in the expression of the agreement of the parties-.”

In that case, there was no question but that the defendant read the instrument, and knew what it contained. But he inadver-tantly overlooked the import of the words: knowing he had agreed to be bound for the £200, he supposed, the agreement expressed his understanding. But he was mistaken, and although himself a lawyer, he was relieved.

In this case, the object of the contract was to deliver the property. The agreement to do so, was the matter to which the complainant’s attention was directed. The recitations were deemed of but little importance, and very naturally, were not scrutinized. The oversight in the statement, inadvertently inserted in the bond by the draftsman, that it was the property of James Helm, would naturally occur, and we think upon reason and authority, ought to be relieved ■ in this court. Let the decree be entered accordingly.

DECREE.

Be it remembered that this cause came on to be heard on this 27th day of January, 1841, before the Honorable Nathan Green, William B. Reese and William B. Turley, Judges, &c, upon tho record of said cause from the chancery court, embracing bill, answer, exhibits, replication and proof, whereupon and upon argument of counsel, it appearing to the court that in executing the delivery bond in the pleadings mentioned, the'said Thomas Helm made a mistake of fact, by inserting therein contrary to his intention, the words, “the property of James Helm,” an admission that the property in the delivery bond was the property of James Helm, when he was himself claiming and insisting on his right to the same: and it appearing to the court that it would be improper and unjust to permit said recital, so made by mistake, to be used as an estopel to the prejudice of said Thomas Helm, in suits pending, or to be brought by or against him, and it appearing that said Thomas Helm has brought suit in the circuit court of Williamson county for damages, for selling said property, against Wright and Graham, and that they, have set up or are about' to set up said recital as an estopel; it is therefore ordered and adjudged and decreed, that the decree of the chancellor be reversed; that said delivery bond be reformed and corrected in the matter of mistake aforesaid, and that the words “the ■ property of James Helm” be stricken therefrom, and that said defendants Wright and Graham be enjoined from setting up said recital in said delivery bond as an estopel in said suit. And it is further ordered that the complainants pay the costs of this cause in this and in the Chancery court, and that execution issue for the same as at law. .. '  