
    Tombs vs Tucker.
    1 A Court of equity will not set aside a conveyance on the ground oK mistake, unless it is clear from the evidence that the party conveying acted under a m ¡stake or misGonoeption in relation to the property conveyed.
    2. The declaration of the defendant, that there was a mistake in the conveyance would he strong evidence against him, in the absenco-of evidence showing clearly that no mistake was made.
    Appeal from t be Circuit court of Ray county..
   Opinion of the court delivered by

Tompkins Judge;

" 1 embs and others claiming as heirs and representatives; of Daniel Hudgins filed their bill of complaint in the circuit court against the respondent Tucker stating that in the nionth of June 1835', Daniel Hudgins sold to Tucker the respondent the south half of the south east quarter of section twenty-one in fractional township fifty one and by mistake conveyed to said Tucker the east half of the said fuarter section instead of the south half of the same that after the execution of the deed by Hudgins to Tucker for the east half .as aforesaid it was discovered that a mistake was made, and it was agreed that it should be corrected by Hudgins conveying to Tucker the south west quarts r of the said quarter section, and Tucker conveying, to Hudgins the north east quarter of the said quarter section that fat to 6ay, the north half of the east half of the said quarter section, which east half as alledged and stated in the hill} Hudgins had by mistake; conveyed to-Tucker instead of the south half that in pursuance of the agreement to correct the mistake; Hudgins in his life time; conveyed to Tucker the south west quarter of the said quarter section hut that Tucker had failed to convey in exchange-fox it the North east quarter of the said quarter section and live bill concludes by praying that he may be. decreed to convey &c. The answer of Tucker denies that- there was any mistake made, and states that Hudgins was the. father of his Tucker’s wife and intended,, had he- lived,, to give, him. the; whole quarter section but was prevented by his sudden death; the answer. denies any agreement betwixt the, respondent Tucker and the; deceased Budging to correct the ¡¡pástate alledged and stated in the bill, by Tucker, conveying to Hudgins the N. E. quarter and Hudgins in consideration thereof conveying to him the S. W. quarter of the quarter section in the bill mentioned. The deeds of Hud-gins showed on their face consideration in money. A witness who wrote the two deeds from Hudgins to Tucker stated that when the first deed was written which conveyed ■the east half of the quarter section, Hudgins produced the two patents for two halves, that is to say, for the east half and the west half of the quarter section, and after a careful examination of them handed to the witness the one for the east half, from which he drew the conveyance to Tucker; and the witness stated it was written according to Hudgins instructions; the witness stated, that after it was written he read it over to Hudgins carefully, and asked him if it was right, and Hudgins answered it was all right. — That when the second deed was written, a mistake in the first was spoken of by some one; but 'whether Hudgins spoke of the mistake the witness did not recollect. That after the execution of the second deed from Hudgins to Tucker, Tucker said to Hudgins, he would then make a deed to H. but his wife was not there and H. answered, never mind, Kitty (meaning Tucker’s wife) will make a deed when 1 call on her. Tbe complainant then proved that, before the first deed was made, the deceased told the witness that Tucker had moved out to this country, and that he intended to give him the south half of the quarter section on which he then lived, that he never intended to put it in the power of one of his children to turn him out of doors, that the deceased lived on the east half of the quarter section which was the same mentioned in the bill.

The same witness further stated that he was at the house of the deceased on the night he died; that previous to his death, he and Tucker walked into the yard, and after expressing to each other their belief that he was dying Tucker observed to the witness that there was a great mistake betwixt him and Hudgins which was not then rectified that, H. had conveyed to him the east instead of the south half of the qr. section on which he lived, and to correct the mistake H. had conveyed to him the quarter of the said quarter seetion necessary to correct the mistake, but that he T. had not on his part conveyed to II. the quarter necessary to eor-rect the mistake, that he T. would havo made to H. the deed at same ^me made to him the last deed, but his wife was not present to relinquish her right of dower: the witness stated that the deceased was a sensible man, and knew as much about his land, and how it was situated and his title papers, as any body; two other witnesses on the part of the complainants testified to similar admissions by Tucker, made after the execution by H. of the second deed to T. A witness produced on the part of the respondent, stated that ho v. ont to the house of the deceased before his death, and learned that Tucker was carrying timber to build a house on the South West quarter ofthe said quarter section and having before understood that a mistake had been made by conveying to T. the east instead of the South half si the quarter section, the witness observed to II. that T. was wrong for building on that quarter, as it had not by mistake, been conveyed to him, to which the deceased Hud-gins replied, pshaw, there, was no mistake at all and that he ini ended to convey that quarter to Tucker, l:e knew what he was about, and that Tucker was right, that as the deceased was returning from the election on trie I5th of August the day on v. hich tfee last deed was executed, he told the witness he had just made Tucker a deed for that forty and that the children were all saying there was a mistake, but there was no mistake at all, and Tucker had a good home. Another w itnesa a grand daughter of the deceased and niece of Tucker’s, wife testified that as the deceased was returning from Richmond, on the day he made the last deed to Tucker he told witness he had given Tucker a good home. Witness said to him, what about the mistake, and the deceased said there was no mistake about the land. Another witness stated, that soon after H. had made the first deed to Tucker, Tucker came to the witness and told him that Ballard Hud-gins (son of the deceased) said there was a mistake in the land the old man had conveyed him and if so he wished it rectified, and desired the witness to go with him to the old man and mention it to him, that they did so and Tucker said is the deceased “now, Mr. Hudgins Ballard says there is a mistake in the land you have conveyed to me and if so I am ready to rectify it,” to this the old man made no reply continuing to walk the floor and when the matter was urged upon him two other times lie replied in a very indifferent manner as if he wi.ihed to avoid any further questions on that subject “that if there was any mistake he reckoned it could be corrected,” and walked out of the room. This is not all the testimony oho 'e.l by the respondent, but the most material. From tiie evidence of the complainants, it appears that the deed iir.it made to Tucker was made with great deliberation, it was slated that the deceased was a sensible man and know as much of his lands and how they were situated and of his title papers as any man did. • The writer of the deeds obesvered tint the deceased, when the first deed was written, tuck out t.vo patents one for each half of the quarter section i;ud after a careful examination handed him the patent for the an t hs.lf, and that the deed tras viitten according to h.-s dire''.lioni, and carefully read over to him by the witness, who ivked him if it was light and that Hudgins answered it was ail right. It is difficult to conceive how an intelligent man (inch he is represented to have been) could irudor such 'ircum dances make a mistake, but when we add to llii s that he told two different persons at different times that Riere was no mistake and that when Tucker, after receiving the Iir..t deed and before the execution of the second, went to him to learn if a mistake had really been made — he not only did not admit that any mistake was made but discovered a manifest indisposition to speak about the matter, we are driven to the conclusion that the deceased committed no mistake in conveying to Tucker in the first instance the eu ;t half of the quarter section, and that he never intended Tucker to convey him.the North east quarter of the quarter section in the bill mentioned. Ballard Hudgins appears to have been' the only person to suggest the mistake, and we cannot avoid concluding that the mis-terious conduct of the deceased was intended by him to prevent his other children, from annoying him with complaints about his liberality to Tucker, who it seems from the testi-^1311 ^ately come- to the- country and’ in the words. of the witness, had married the pet of the deceased, that is. to say in- other words,, the youngest daughter. Nor is it any injury to the claim of Tucker that he seems to havebeen himself under the impression-, the. deceased expected him to-reconvey to him the North east quarter of that quarter section. His declaration at several times made of his promise recover would have, been strong evidence of his liberality, had it not been so clearly established that the deceased, made no mistake and never intended him-to reconvey. The ¿ecree 0f the circuit court appears to me to be very correct.. , J Each-.party pays- his own costs because- we are to presume that when the complainants filed their bill,, they did not know what testimony could; Be produced against them, and by their own testimony they made out a, strong case.

A couit nf equity v»V( not sot aside si conveyance on the ground oi' mistake, unless it is clear from tbs evidence that the party conveying acted under a mis take or misconception in relation to the property conv°ye‘!-

ration*1 defendants was a mistake in the convey-unce would be strong evi bhT'in thest ’him, in the-absence of evidence showing «1 early that no mistake-was made.

Adams for appellants..

To reverse the opinion of'the circuit court the appellants will rely upon the folio wing-points and authorities.

1. “That the court had full power to correct the mistake, see 2d John Ch. Rep. 585, Storys Equity 154.,

2. That the proof was sufficient to shew the mistake and; if so the court should have made a decree correcting it,

3. That if the proof was not sufficient-to correct the mistake, it was at least sufficient to-shew that the second deed was fraudently obtained and consequently a decree should! have been made to set it aside.

Wilson for appellant.

. “In the first place we contend that the evidence of the-mistake in this case is not sufficient. The books lay it down that such evidence, in such cases,, must be “clear and certain,” of the “clearest and most satisfactory character,” that it must be “irrefragable proof &c,” see, as the great leading case on this subject Gellespie vs;Moore, 2 J. Oh..,R„, 585, Syman vs United States Insurance-Co. 2J. C. R. 630 Executors of Getmanvs Bundly 2'J. C,. R. 274, Johnsons, -digest 227. 1. Maddox ch. 50, (N. 2.) 1 semi annual part Mo. ft. 62 Baitlett vs Glascock.

The decree of the circuit court is affirmed, and the appellants will pay costs, the incurred, by the prosecution of the-appeal.

In the 2d place, we contend +hat it is not only necessary to prove the mistake with sufficient certainty, but to prove the real agreements between the parties. Johnsons digest 228, Gellispie vs Moore, 2 J. C. 585, Syman vs United Insurance C. 2. J. C. It. 630.

In the third place, that the acknowledgment of the defendant alonéis not conclusive evidence to bind hirn.Gellis-pie vs Moore.”  