
    Wells vs. Ogden and others.
    
      Written contract, when reformed — Deed.
    1. It is well settled that a written instrument will not he reformed on the ground of mistake, except upon the clearest and most satisfactory proof.
    S. Plaintiff deeded “the E. half of the E. half of the 8. E. qr.” of a certain section “containing forty acres mors or less according to the government survey,” and “the W. half of the S. W. ” of another section, “ containing eighty acres more or less, according to the government survey.” The two tracts contain in fact about one hundred and twenty-nine acres. He claims that he sold exactly one hundred and twenty acres from the west end of his farm, and did not intend to convey any more, and asks to have the deed reformed etc. It appearing that he himself furnished the description of the land inserted in the deed, and there being no clear and conclusive evidence to show that the agreement and intention were as now claimed by him, the court below did not err in dismissing the complaint.
    APPEAL from tbe Circuit Court for Fond du Lac County
    Action to correct an alleged mistake in a deed, and to compel]- a reconveyance, or to' declare tbe title to a portion of tbe premises to be in tbe plaintiff. Tbe opinion states tbe case. Finding for defendants, and judgment tbat tbe complaint' be dismissed with costs, from wbicb plaintiff appealed.
    
      A. M. Blair, for appellant.
    
      Crillet & Taylor, contra.
    
   Cole, J.

Tbis action was brought to reform a deed and to compel a reconveyance to tbe plaintiff of nearly nine acres included therein. Tbe land conveyed was described in tbe deed as being “ tbe east half of tbe east half of tbe southeast quarter of section twelve, township fifteen, range -seventeen east, containing forty acres more or less, according to government survey. Also, tbe west half of tbe southwest quarter of section seven, township fifteen, range eighteen east, containing eighty acres more or less, according to.govemment survey.”

It appears from tbe evidence, tbat about nine months before tbe commencement of tbe suit, the plaintiff sold a portion of bis farm off tbe west end of tbe same. Tbe plaintiff claims tbat tbe contract was for tbe sale of a specific number of acres, tbat is, one hundred and twenty, at tbe price of $60 per acre, and that be did not intend to convey any more than, this precise quantity of land. It is admitted tbat tbe west half of the southwest quarter of section seven contains, according- to government survey, eighty-eight and ninety-seven hundredths acres; and.it is tbe excess over eighty acres in tbis. tract, wbicb tbe plaintiff seeks to have reconveyed. Tbe defendant, claims tbat be purchased tbe land as a whole, by tbe government descriptions, and tbat, if tbe land in any subdivision exceeds tbe usual quantity, tbe excess belongs to him.

The power of a court of equity to reform a deed where there is a mistake in a material part, is not questioned by the coum sel for the defendant; but he insists that the court will decline to exercise its jurisdiction for that purpose, unless the mistake is established by the most satisfactory evidence. And he claims that the proof does not show with any certainty, that there was a mistake made in the conveyance which is sought to be reformed.

It seems to us impossible to say that the alleged mistake really occurred, and that the deed conveys more land than the parties intended it should. The most that can be said is, that the evidence relating to the question of fact is quite conflicting and contradictory. The plaintiff swears, in substance, that the contract was that he was to convey one hundred and twenty acres off the west side of his farm, and that when he executed the deed he supposed that it included that number of acres and no more. But the evidence is quite clear and satisfactory to show that the descriptions of the land, as contained in the deed, were furnished by’the plaintiff. It is quite probable, however, that he was not familiar with the public surveys, and did not know that the west half of the southwest quarter of section seven contained more than eighty acres; and yet we cannot say that these facts even are established beyond doubt. But the language of the deed would seem to be decisive upon this question of fact, and satisfies us that we would not be warranted in this case upon the evidence in granting the relief which the plaintiff seeks. According to the deed the plaintiff conveyed the west half of the southwest quarter of the section containing eighty acres more or less according to government survey. This was the description inserted in the conveyance by the direction of the plaintiff himself If he only intended to convey eighty acres in that tract, why was such language used ? Why was the tract described by a government subdivision as being eighty acres, with the qualifying words, more or less according to government survey, if the real intention was not to convey a definite quantity ? It must be assumed that the plaintiff knows the force and meaning of such language; and the question arises, Why was it inserted in the deed, if he only intended to convey a certain number of acres of land off of a certain tract ? It seems to us it would be very unsafe to disregard such language when we are endeavoring to ascertain the real intention and understanding of the parties to the contract. This court has time and again decided, that in order to justify a court in reforming written contracts on the ground of mistake, the fact that a mistake occurred must be shown by clear and satisfactory testimony. And the authorities generally concur in holding to this strictness of proof upon this subject. Applying, then, these rules and principles to the case before us, it is impossible to say that the alleged mistake is established by that degree and amount of evidence essential to warrant the interposition of a court in reforming the deed as sought by the plaintiff. We have not deemed it useful to go into a general analysis of the testimony in support of our conclusion.

By the Court — The judgment of the circuit court, dismissing the plaintiff’s complaint, is affirmed.  