
    Washburn v. Merrills.
    1803.
    In the Court below,
    Mead Merrills, Petitioner; William Washburn and Rachel his wife, Jared Munson and Elizabeth his wife, Thomas Dutton, and Stephen Sanford, 2d. Respondents,
    
    having been ap.ee¿ be-P®' tics to 3. cieea, that it should be executed as a mortgage accident, was f'NPíMTterl 3Ü Í)TS absolute deed, chancery will treat it as a mortgage, to shew the mii>Uli:e'
    TTTTf, . . . , , HIS was a petition m chancery to redeem certain lands as mortgaged property, brought to the Court, in August, 1801.
    The following facts were set forth in the petition, and found by the Court: On the 18th of November, If 84, Solomon Sanford, being indebted to Rachel M'Donald, in the sum of 162/. 15s. executed his promissory notes to r J _ her, for the payment of that sum ; and, further security being required, it was agreed between them, that he should execute to her a mortgage deed of two pieces of land, containing about fifty acres, as collateral security for the debt, and to contain a condition, that on payment thereof, the deed should be void. On the same day, he executed to her a deed of said land, which vean intended to be drawn and executed as a mortgage deed, in pursuance of their agreement, but was, by mistake and accident, drawn and executed as an absolute deed. This mistake was not discovered by Sanford., till some time after the deed ivas delivered. Miss McDonald was af-terwards married to William Washburn, who, in 1/88, in right of his wife, forced Sanford out of possession. On the 18th of February, 1795, Sanford conveyed his right in the premises to Mead Merrills, the petitioner; Sand on the 7th of March, 1801, Washburn and his wife sold, fay deeds containing the usual covenants of seizin and warranty, the whole of said land, in three several parcels, to Thomas Dutton, Stephen Sanford, 2d. and Elizabeth, wife of Jared Munson. Of these facts all the respondents had knowledge, and refused to permit the petitioner to redeem.
    The respondents, for answer, pleaded the statute of frauds and perjuries, with an allegation, that there was no note or memorandum in writing of the agreement. This allegation was found, by the Court, to be true.
    On the trial of this case, the petitioner offered witnesses to prove the mistake, which was objected to, by the respondents ; but the objection was overruled by the Court, and the witnesses admitted. The respondents, thereupon, filed their bill of exceptions.
    The Court decreed, in favour of the petitioner, a redemption of the land, upon his paying the principal and interest due on the notes, and costs of suit.
    
      Daggett and Allen, for the plaintiffs in error,
    contended,
    1. That the deed being absolute, the possession of Sanford, the grantor, was the possession of the grantee, which, with the actual possession of the grantee, was more than fifteen years.
    2. That the allegation of mistake and accident is insufficient. To this point were cited 1 Fon. Eq. 188, Langley v. Brown, 
      
       Harvey v. Harvey, 
      
       Joynes v. Staiham, 
       and Baker v. Paine, 
      
    
    
      3. That this agreement, being parol, cannot he proved.
    
      Smith, (of Woodburr) and Gould., for the defendant in error,
    argued, That a mistake in an instrument is always a head oí relief in chancer} ; and that the very idea ol a mistake precluded its being in writing. They cited foi/nes v. Statham, 
      
      Shelburne v. Inchi fiiin, 
       1 Pozv. Con. 432, Crosby v. Middleton, 
      
       Baker v. Paine, 
      Simpson v. Vaughan, 
      
       Henkle v. Royal Exchange Assurance Company, 
       Pitcairn v. Ogbcurne, 
      
      Chapman v. Allen, 
      
       Matson v. Parkhurst, 
      
       and C’so.é v. Preston. 
      
    
    
      
      
         2 Atk. 203, [196]
    
    
      
      
         2 Ch. Ca. 180.
    
    
      
       3 Atk. 357, [388]
    
    
      
      
         1 Ves. 456
    
    
      
      
         3 Atk. 358, [389]
    
    
      
       1 Br. Ch. Ca. 341,
    
    
      
      
         Prec. Ch. 309.
    
    
      
       1 Ves. 459.
    
    
      
      
         2 Atk. 31.
    
    
      
      
         1 Ves. 318,
    
    
      
       2 Ves. 376.
      
    
    
      
      
        Kirby 399
      
    
    
      
      
         1 Root 404.
    
    
      
      
         2 Root 78.
      
    
   By the whole Court,

The judgment was affirmed.  