
    Lindsay T. Smith v. Edward J. Turpin et al.
    
    
      1. Where husband and wife execute a deed, intending thereby to convey the entirety of land owned by them as tenants in common, and by mistake the deed is made in such form as only to convey the husband’s undivided interest therein, and the wife’s right of dower in that interest, the court is authorized, under the act of April 17, 1857 (S. & O. 694) to relieve against the mistake.
    2. Where mutual deeds are made between parties at the same time, and in execution of the same contract, they may, for the purpose of determining the intentión of the parties, and correcting errors, omissions, or mistakes in either, be regarded as a single transaction.
    Appeal. Eeserved in the district court of Hamilton county.
    This is an action to procure the reformation of a deed. It came into the district court by appeal from the common pleas, and was there reserved for decision here.
    The petition alleges that Elizabeth Kugler, wife of the late Matthias Kugler, and mother of Certain of the defendants, was a daughter and one of the heirs of Christian Waldsmith, deceased; that said Christian died, seized of large tracts of land situated in Hamilton and adjoining counties, including that which is the subject of this suit; that upon proceedings taken to partition the same among the heirs of Waldsmith in the supreme court for Hamilton county, Matthias Kugler and Elizabeth his wife elected to take the property according to law; whereupon, by order of that court, the then sheriff of Hamilton county executed and delivered to said Matthias and Elizabeth a deed conveying the same to them in fee-simple. That at the time of said proceedings in partition, Jane Wiley, wife of William Wiley, was one of the heirs of Christian Waldsmith, and was a minor under the guardianship of Matthias Kugler; that on or about September 20, 1824, said Matthias agreed with William and Jaue Wiley that they should release to him all their interest in the real and personal estate of Christian Waldsmith, and all claims against him growing out of his guardianship of Jane ; for which release he was to pay them $3,750, $3,000 thereof by a conveyance in fee of all the real property belonging to the estate of Waldsmith, situated in the town of Columbia, of which the lands here in controversy are a part, as well the interest of Elizabeth as his own. That in pursuance of said agreement, William and Jane Wiley did execute and deliver to said Matthias the said release; that Matthias and Elizabeth Kugler, in order to execute their part of the agreement, duly executed and delivered to said William and Jane a deed attempting and intending to convey to them in fee-simple all of said lands in Columbia; and that an error occurred in writing said deed, by the omission of Elizabeth Kugler’s name in the granting clause, whereby only Matthias Kugler’s undivided half part of said lands passed to them, instead of the whole fee-simple, as was meant and intended. That said Matthias and Elizabeth delivered possession of said lands to the Wileys, and never after set up any claim thereto. And that the plaintiff has acquired title to part of these lands from Wiley and wife, and is in possession thereof.
    The object of - the action is to reform the deed from Matthias Kugler and Elizabeth Kugler his wife to William and Jane Wiley, so that the same may be made to contain the name of the said Elizabeth Kugler in the granting clauses of that deed, and operate to convey the title of the said Elizabeth in the lands described in it, which was a fee-simple to one undivided half part thereof in addition to her contingent right of dower in the other undivided half then owned by her husband; to enjoin the defendants from prosecuting certain actions of ejectment commenced by them against the plaintiff in the court of common pleas for Hamilton county, and to quiet his title.
    The answer of the defendants, who are the only heirs at law of Elizabeth Kugler, avers that said Elizabeth Kugler and Matthias her husband were tenants in common of the lands in question, by virtue of their election to take them under the proceedings in partition, and the sheriff’s deed made to them thereon. The answer denies the alleged agreement between Matthias Kugler and William and Jane Wiley; it denies that said Matthias and Elizabeth, or either of them, ever agreed to or did convey, or intend to convey, any part of her title to said real estate to William and Jane Wiley, except the contingent right of dower in her husband’s undivided half of said land; it denies that any error occurred in the execution of said deed, and avers that the deed expresses fully on its face the intention of the parties, and all the estate at any time intended to be granted. It avers the coverture of Elizabeth, from a time before the death of Christian Wald-smith, till her death in July, 1846, and the death of Matthias, in 1854; and denies that said Elizabeth yielded possession of her undivided interest to the Wileys, and denies the adverse possession of them and those claiming under them, alleged in the petition.
    The deed sought to be reformed is made an exhibit in the case, and purports to be a conveyance by Matthias Kugler, of the entirety of the premises named, and not merely of a moiety thereof, and declares that the property conveyed comprehends “ all the property of said Christian Waldsmith, deceased, lying in the town of Columbia,” with a release by Mrs. Kugler of her right of dower therein; and is executed and acknowledged by the husband and wife in due form of law.
    The deed of release from Wiley and wife to Matthias Kugler, bearing the same date as that from Kugler and wife, attested by tbe same witnesses, acknowledged on tbe same-day, and before the same officer, and recorded on the samaday, is also in evidence. It purports to convey, not the entirety of the premises described in it, but merely Mrs. Wiley’s-undivided part thereof, namely, an “ undivided third part ” of one of the parcels named, and “ one third of one seventh of another.
    It is admitted, in an agreed statement of facts, that the price so paid by Wiley and wife for the land in controversy was “ a full and fair price, at the time, for the entire premises ’’ (and, of course, double the value of Matthias Kugler’sinterest therein), and that, immediately upon receipt of the deed, Wiley and wife entered into possession, claiming title to the entire land, and that they and those claiming title under them, including the plaintiff, have maintained their possession ever since.
    The only evidence in the cause, in addition to these deeds, and the agreed statement aforesaid, is the testimony of two* witnesses, Ann Thompson and Robert Wiley, examined on behalf of the plaintiff. They both testify to conversations-had with Mr. and Mrs. Kugler at and soon after the date-of the deeds. Ann Thompson gives her recollection of a conversation in which Mrs. Kugler, shortly after the conveyance, spoke of it as a conveyance of the entire premises. Robert Wiley’s testimony relates to his knowledge of the-transaction at the time it occurred, through eonversationswith both Matthias and Elizabeth, and subsequent statements made to him by both of them in answer to inquiries-put to them by him as to the state of the title, when he was-about to loan William Wiley three hundred dollars upon the security of the lands — a loan which he did, in fact, make,, upon the assurance of Mr. and Mrs. Kugler that there was-nothing which could take the lands from the Wileys except debts of their own.
    
      Samuel R. Matthews and Matthews da Ramsey for plaintiff:
    Since the ease of Goshorn and Wife v. Purcell, 11 Ohio St. 641, there is no longer any doubt of the power of the court under our present constitution and laws, to correct mistakes in a deed executed by a married woman as against her or those claiming in her right; and that, too, even where the mistake occurred before the passage of the act, or the adoption of the present constitution of the State.
    The act of April 17, 1857, 1 S. & C. 694, authorizes and empowers the court, “ to corre’ct, amend, and relieve, against any errors, defects, or mistakes, occurring in the deed,” etc.
    The 28th section of article 2d of the constitution, upon which the above act is founded, provides, “ that the general assembly may, by general laws, authorize courts to carry into effect .... the manifest intention of parties and officers, by curing omissions, defects, and errors, in instruments and proceedings, arising out of their want of conformity with the laws of this State.”
    Under the foregoing constitutional provision and statute, this court has settled, in the case of Goshorn v. Pureell, cited above, and the subsequent case of Miller v. Hine, 13 Ohio St. 565, the following propositions, as the law of this State upon this subject:
    1. That the omission, defect, or error, sought to be supplied or cured, must be in an instrument or proceeding which, but for such error, omission, or defect, would be valid under the laws of this State to carry into effect the intention of parties or officers. Goshorn v. Purcells p. 649; Miller v. Mine, p. 568.
    2. That the errors, omissions, or defects, which the court is empowered to cure, are not those merely which pertain to *“ ceremonies of execution,” that is, errors of form, but extend to omissions in the body of a deed; that is, errors of substance. Goshorn v. Purcell, pp. 648, 652.
    3. That the object of the court is to ascertain the intention with which the parties executed the deed, and when so ascer-tained, to so alter and amend that deed that it shall duly and properly express and carry into effect that intention.
    4. “The intention,” the court say, “must be manifest, but how manifested, is not expressed.”
    
      “ It may happen that a mere inspection, of the imperfect instrument will show what is the omission, etc., and make manifest the intention of the parties.” . . .
    But “ we think the courts are not confined to a mere inspection of the instrument, etc., but are at least entitled to be placed in the same position as if called on to control and give effect to a perfect instrument. The object being to ascertain if there be an omission, defect, or error in the instrument which has prevented the manifest intention of the parties from being carried into effect, the court may look to the subject-matter, the connection of the parties with it, and surrounding circumstances at the time of the execution of the instrument.” Goshorn v. Purcell, pp. 647, 648.
    Now to apply these principles to the present case:
    1. The deed we seek to reform is an instrument which the court is authorized to correct, it not being an instrument null. and void, as in Miller v. Hine; but a valid instrument, according to our laws, with respect to the wife, as well as the husband, the latter having duly joined with her in making and executing it. It is an instrument good in law so far as .it goes, and only defective in that it does not go far enough. It only conveys the husband’s undivided half with the wife’s contingent right of dower therein, and is defective merely in that it does not convey the wife’s undivided half also. .
    2. The particular omission in the deed which we desire to supply, the omission of Elizabeth Kugler’s name in the granting clause, is one which the court is empowered to supply, although it is not an error in the “ circumstances of the execution,” or of form merely, but an omission in the body of the deed itself, that is, an error of substance. The omission complained of in Goshorn v. Purcell, and which the court supplied, was precisely the same as in this case.
    3. If, then, the vntention of Mrs. Elizabeth Kugler, in executing this deed, was to convey her undivided half of said lands, as well as her dower right in her husband’s half, and that intention can be made manifest, then the court is authorized to effect that intent, by amending the deed as desired by the plaintiff; there being nothing in the nature bl the instrument, or proposed amendment of it, to prevent the-exercise of such power.
    What, then, was her manifest intent ?
    1. Let us first inspect the instrument itself, and in doing so, let us read it in connection with the deed from Wiley an<f wife to Kugler.
    We have a right to do s.o, for the two deeds being executed simultaneously between the same parties, and in relation tc the same subject-matter — the former, indeed, forming a part of the consideration for the latter — form part and parcel of the same transaction.
    “ Several deeds made at the same time to effect one object will, at least in equity, be construed as one assurance.”
    “ Several instruments in writing, made at the same time between the same parties, and relating to the same subjects,, constitute but one agreement.”
    
      White v. Brocaw, 14 Ohio St. 339; 1 Fonbl. Tr. Eq., 5th ed. 436, 437; Stephens v. Baird, 9 Cowen, 274; Makepeace v. Harvard College, 10 Pick. 302; Sibley v. Holden, 10 Pick. 250; Hunt v. Livermore, 5 Pick. 395; Applegate v. Jacoby, 9 Dana, 209; Strong v. Barnes, 11 Verm. 221; Odiorne v. Sargent, 6 N. H. 401; Raymond v. Roberts, 2 Aiken, 204; Reed v. Field, 15 Verm. 672; Ewer v. Myrick,. 1 Cushing, 16, 22; Whitehurst v. Boyd, 8 Alabama, 375; Sewell v. Henry, 9 Alabama, 24; Duncan v. Charles, 4 Scammon, 561; Barnard v. Cushing, 4 Metcalfe, 231.
    We claim that from a mere inspection of the deeds as they stand, the intent that the deed in question should be made to-convey the entire interest of both Mr. and Mrs. Kugler, whatever that might be, is obvious, although the writer of the deed, either through inadvertence or through ignorance of the true-state of the title, it is immaterial which, failed to carry that intent into effect, by omitting Mrs. Kugler’s name in the granting part.
    The same intent is manifest when we read these deeds in-the light of surrounding circumstances, with a view to determine the intent with which they were made, and look at the situation of the parties at the time of the execution of the deeds, the nature of the subject-matter about which they were dealing, and the relations which the parties bore to each other, and to that subject-matter.
    Mrs. Kugler, in joining with her husband in the execution of the deed, must have done so with one or other of the following intents:
    1. To make a good conveyance of the entire interest in the whole of the lands in question, so that the "Wileys, and they alone, should be seized in fee-simple of the entire estate; which is the intent we claim to have existed at the time, and attempted to be carried into effect.
    2. To make a deed which should convey to the Wileys a fee-simple in her husband’s undivided half free of her dower, but reserving her own fee in the other half, leaving her a tenant in common with the Wileys, and entitled equally with them to the use or rents and profits of the land; or,
    3. To make a deed which should convey to the Wileys the fee of her husband in the undivided half, her contingent right of dower therein, and her husband’s life estate in her half, which is the present deed as it now stands, reserving to herself the reversion in fee, after the determination of her husband’s life estate in her half of the property.
    But the second hypothesis is so entirely inconsistent with .her admitted conduct, with regard to the possession and use or profits of the lands, from the time of her conveyance to her death, that it cannot be considered for a moment; and as to the third, we say that there is no word or circumstance in the case which intimates that the life estate of the husband in his wife’s half, was ever a subject of their contemplation at all, as a separate estate to be conveyed ©r otherwise dealt . with; and the absence of any expression concerning it, or concerning the reversion to be left in Mrs. Kugler after his death, clearly shows that they had no intention about them whatever.
    The depositions of Ann Thompson and Robert Wiley taken in the cause, if competent, are very conclusive as to the intent •of Kugler and wife to convey the whole interest.
    Is the evidence of the declaration of Mrs. Kugler concerning their title, made contemporary with and subsequent to the execution of the deed, admissible? "We claim that it is,
    1. Because they are the declarations of a person, since deceased, made against her pecuniary and proprietary interest Taylor on Evidence, sec. —; Greenleaf on Evidence, secs 109, 130 et seq.; secs. 147, 155.
    2. ' Because they are declarations of her intent in making the deed, and so part of the thing done if made at the time of execution, and are acts if made subsequently, which may be given in evidence in aid of the construction to be put upon the deed. Taylor on Evidence, sec. 1090 et seq. ; Idem, sec. 1095. See this last particularly.
    
      T. M. Lewis for defendants:
    The petition prays, among other things, for the correction of an alleged error or mistake of fact, not of law. The power of courts to correct such mistakes, as against a married woman, is derived from the act of the general assembly, passed April 17th, 1857. S. & O. 694, Prior to that act, no such power existed.
    The proviso of the 28th section of article 2d of the constitution, it is claimed, authorizes such legislation. That proviso warrants the legislature in passing a law authorizing the courts to carry into effect the manifest intention of parties and officers, by curing omissions, defects, and errors in instruments and proceedings, arising out of their want of conformity with the laws of this State, etc.
    The legislature has certainly absorbed all the power given to it by this section of the constitution. The act authorizes courts to correct mistakes or errors of fact, as against a married woman, whilst the constitution limits such legislation to the correction of errors of law.
    The deed, which this court is asked to correct, is a lawful one, executed in conformity with the statutes of Ohio. Mrs. Kugler had the right, by law, to bar herself of dower in her husband’s part of the lands in question, and withhold the granting of the fee to the part held in her own right. That, I claim, is precisely what she did. But the court is asked to go farther than that, and decree that she intended, to convey all the right and title she held in the whole land.
    But granting the power of the legislature to pass such an act, it should be strictly construed. The plaintiff in this case, seeking the benefits of the law, should bring himself clearly within its provisions. He should make the error, or mistake, of which he complains, manifest. The intent must be dearly proved.
    The mistake, if any exists, is not made manifest by the reading of the deed itself. The deed, in and of itself, is perfect, and no one could reasonably suppose that Mrs. Kugler intended to grant any more than her contingent right of dower in her.husband’s lands.
    It is claimed that the case of Goshorn v. Purcell, 11 Ohio St. 641, is a parallel case to the one in hand. Bat upon comparison it will be found that there is a manifest difference between the two cases.
    In the one case, Lorenia Goshorn was the owner and holder of the entire fee in the whole property, and had no expectancy of dower to release.
    In the case in hand, Elizabeth Kugler was the owner in fee of one seventh by descent, and one half the balance by purchase, and her husband the owner in fee of the remainder, and she had a contingent right of dower in her husband’s part to release.
    One deed recites: “ This Indenture, made between Nicholas Goshorn and Lorenia, his wife of the first part.”
    The other begins: “ That I, Matthias Kugler,” etc., “ in consideration of $3,000 paid me, have given, granted, bargained, sold,” etc.
    In the one deed the grant is of “ all the title, interest, claim and demand, of them the said Nicholas Goshorn and Lorenia,. his wife, of, in and to the said premises.”
    In the other deed, now before the court, Mrs. Kugler is not known in the body of the instrument. Her name does not appear until we reach the clause releasing dower. No mention is made of the part which she held in her own right The whole contract is that of Matthias Kugler on the one part, and William and Jane Wiley on the other.
    The deed on its face proves clearly that Mrs. Kugler did not intend to convey her fee.
    The intention of Mrs. Kugler to grant her interest, and the alleged mistake not being made manifest by the deed alone, the complainant must clearly satisfy the court of the mistake, by testimony aliunde. And that is not all; he must go beyond the averments of his petition. The court will observe that there is no averment in the petition, that Mrs. Kugler agreed, with William and Jane Wiley, to convey her fee. But the claim made in the petition is, that Matthias Kugler, alone, agreed with William and Jane Wiley to convey the Columbia property. And being no party to any agreement previous to the writing of the deed, no other conclusion can be drawn than that the deed itself fully expresses her intention. Her mind did not meet the minds of the other contracting parties, at any other time nor in any other manner than that expressed in the conveyance.
    I refer the court to some decisions, showing the strength of testimony required to change a written agreement under seal, like the one now before the court. King v. Baldwin, 2 Johns. Ch. 558; Marks v. Pell, 1 Johns. Ch. 598; Lyman et al. v. The United Insurance Co., 17 Johns. 376; Turpin’s Adm’r v. Marksberry, 3 J. J. Marsh. 622; Triplett et al. v. Gill et al., 7 J. J. Marsh. 433; Gray v. Woods, 4 Blackford, 432; Beardsley v. Knight et al., 10 Verm. 190; Lyman’s Adm’r v. Little et al., 15 Verm. 592; Coles v. Bowne, 10 Paige Ch. 532; Hilliard on Yendors, 323, § 39.
    It does not appear, either by the averments in the petition or otherwise, that Mrs. Kugler was present, or took any part in the negotiation for the sale of the Columbia property, except at the time she signed the deed. It would therefore seem that the deed fully expresses her intention.
    An alleged mistake must be shown by testimony other than that appearing on the face of the deed. Carney v. Hopple’s Heirs, 17 Ohio St. 39.
    It cannot be reasonably insisted that the deed from Wiley and wife to Matthias Kugler tends to prove a mistake in the deed from Kugler to them. Mrs. Kugler is not known in that deed, nor is the slightest reference made to her, or the Columbia property.
    It will be observed that no part of the consideration passed to Mrs. Kugler. If it had been the understanding between the parties that Mrs. Kugler’s interest in the Columbia property was to be granted to Wiley and wife, as part of .the consideration for the Carr land, release of debts, etc., surely the •deed would have been made to Kugler and wife, in proportion to their respective interests.
    The consideration of $3,750 was the moving cause on the .part of Wiley and wife in making the deed ; and their interest in the Carr tract, together with a release from all responsibility as guardian, the moving cause of Matthias Kugler in receiving it.
    But it is claimed that the two deeds should be read together, each forming part of one and the same transaction. Suppose that is granted, what does it prove ? Surely not any mistake on the part of Mrs. Kugler, as to the quantity of title she intended to convey. The transaction, as to the execution of the deeds, together with the averments in the petition, may be the same as between Wiley and wife and Matthias Kugler, but not as to Mrs. Kugler in respect to her fee in the land. The bargain does not seem to be for her benefit, for she received nothing, and as I claim carefully avoided to grant her fee or agree to do so.
    It is claimed that from the fact, that apt words are used in the deed from Wiley and wife to Kugler, describing and granting the exact interest of Mrs. Wiley, and the- absence of such words in the deed from Kugler and wife, the mistake in the latter deed is made manifest. That circumstance, I claim, proves directly the reverse. The very fact that the scrivener was so accurate in describing the interest of Mrs. Wiley in the land she was conveying, as to make no mistake, is strong testimony that no mistake was made in the deed from Kugler and wife.
    If the parties were ignorant of Mrs. Kugler’s intei’est in the land, then there could have been no mistake, or, in other words, no agreement on her part to convey.
    As to the depositions of Robert Wiley and Ann Thompson. Both these witnesses profess to detail conversations had with Kugler and wife, about thirty years after the same should have occurred. A very low and uncertain grade of testimony at best If admissible at all, it is not sufficient to prove that a mistake was made. Gillispie v. Moon, 2 Johns. Ch. 584.
    If Matthias Kugler alone agreed with Wiley and wife to grant the whole fee-simple title to the land, as is averred in the petition, and they were mistaken in the quantity of title they were receiving, Mrs. Kugler could not be affected, nor should her children be deprived of their inheritance. The agreement to convey must have been understood by the grantor and the grantees' precisely alike, and assented to by both, before equity will interfere.
    It is claimed that a full price was paid by Wiley and wife for the whole fee-simple title, as well that of Mrs. Kugler as that of her husband. That fact, I think, cannot aid the plaintiff in obtaining the relief prayed for. If the consideration was paid by Wiley and wife by a mistake of their own, as to the quantity of title they were receiving, it must be their own loss. Other persons not parties to the agreement, or the mistake, cannot be made responsible. Besides, Mrs. Kugler did not receive any part of the consideration. The whole was received by Matthias Kugler, for his own personal benefit.
    Although the mistake as to the value of the property might be mutual, Wiley and wife could not recover back the difference between the amount paid and the value of the land purchased.
    As to the possession of plaintiff and those under whom he claims. There is no testimony showing that Mrs. Kugler ever yielded possession to her portion of the land. Wiley and wife tooh possession ; and that is all. An act that Mrs. Kugler could not prevent. Matthias Kugler held the fee in part of the land, and a life estate in the remainder by the courtesy, both of which he -granted. -
    
      Mrs. Kugler was a married woman, and remained such till her death. The statute never began to run as against her. Lapse of time would not bar the defendants, if the statute had been formally pleaded. The possession was not held adversely to Mrs. Kugler, while she lived, nor against her children and heirs, till after the death of their father.
   Welch, J.

The case presents two questions: 1. Is the alleged mistake in the deed of Mrs. Kugler one which, under the constitution and laws of Ohio, the court has power to correct ? 2. If it be such, is the mistake sufficiently proven ?

We decide both these questions in the affirmative.

The power of courts to correct such mistakes, that is, mistakes in the deeds of married women, is derived from the act of 17th April, 1857 (S. & C. 694), which this court has heretofore held to be in conformity to the 28th section of article 2 of the constitution.

The act provides in substance: “That the courts of this State ” [having competent jurisdiction] “may correct, amend, and relieve against any errors, defects or mistakes occurring in the deed or other conveyance of any husband and wife, heretofore or hereafter to be executed and intended to convey or encumber the lands or estate of the wife, or her right of dower in the lands of her husband, in the same manner and to the same extent.... as against other persons.”

That the provisions of this act are broad enough to cover cases like the present, is fully decided in the cases of Goshorn and Wife v. Purcell, 11 Ohio St. 641, and Miller v. Hine, 13 Ohio St. 565. In the latter case the court refused to reform the deed, simply on the ground that the deed was void, having been executed by the wife alone, and not in conjunction with her husband. There was in that case no deed to reform. The so-called deed was a nullity. To grant the relief sought there, would have been to make a deed for the wife. In the present case there is in fact, and in law, a deed. It binds the wife, and the only question is, how and to what extent it should bind her. The statute says; substantially, that it may be made to bind her according tc. the intention of the parties. How is this to be done? Not merely by correcting mistakes and supplying omissions which relate to the solemnities and forms of its execution, but .as well those which relate to its operative words of conveyance, or the body of the deed. Where a deed has in fact been executed, the power of the court to correct mistakes occurring therein is by the statute made as broad as the liability of the parties to fall into such mistakes, provided only that they be mistakes which, in equity, ought to be corrected. The case of Goshorn v. Pwrcell, in which the relief sought was granted, is identical with the present case, so far as this question is involved. The only difference between the two cases is, that in the former, the wife owned the entirety of the land intended to be conveyed, and in the latter she owned but a moiety of it, as tenant in common with her husband. In both cases the deed was intended to be in execution of the husband’s contract, and was intended to be for the conveyance of the entire premises; and in both, the mistake consisted in the omission to insert the wife’s name in the granting part of the deed. In both eases the consequences of the mistake were the same, namely, to leave the wife’s fee in the land unaffected by the conveyance. The fact that in the case of Goshorn v. Purcell the wife had no dower interest to be affected by the deed, and that in the present case she had a dower right in her husband’s undivided interest, makes no essential difference. In both cases her intention to convey her own land was defeated by an omission to insert her name in the granting clause of the deed. In order to make the deed a proper^ subject for correction by the court, it is surely not necessary that it be a deed like that in the case of Goshorn v. Purcell, which has no effect conveys no estate. If its effect is to convey more, or less, or anything other than what the parties intended, it is within the plain reading of the statute.

But is the evidence sufficient to establish the fact of mistake ? The testimony of the witnesses Ann Thompson and Robert Wiley, unaided by other evidence, would clearly be insufficient. Such testimony should always be received with' caution, and more especially so when used to impeach a written instrument. But this testimony does not stand alone It is in harmony with the admitted facts, that the husband sold and agreed and intended to convey the entire premises, that he received a full consideration therefor, and that the grantors have been allowed for a long period of time to remain in undisturbed possession. These facts themselves go far towards proving that the wife intended more than the mere release of her dower right in her husband’s moiety of the property. Added to these pregnant facts is to be considered also what appears upon the face of the deed itself, and, in connection therewith, what appears upon the face of the other deed executed at the same time, and in part performance of the same contract — for these two deeds, being m joari materia,, may well be regarded together as constituting parts of one and the same transaction. In the deed of Wiley and wife, where the admitted intention and contract was to convey an undi/oided part of the premises, the scrivener has-described that undivided part in exact and appropriate language. In the deed in controversy, sweeping and unmistakable words for the conveyance of the entire premises are used. Is it at all probable, in the latter case, that what th£ parties really meant was to convey to Wiley and wife-merely the husband’s fee in the undivided half of the premises, free from dower, and the husband’s inchoate estate of courtesy in the wife’s half? Such seems to be the legal effect of the deed; but it seems to us morally certain that such was not the intention of the parties. The truth of the • matter evidently is, that the same mistake was made as that relieved against in the case of Goshorn v. Pureell, a mistake which unpractised scriveners are doubtless quite-liable to fall into — that of adopting for the conveyance of the wife’s property, by deed of the husband and wife, the same form of deed used in conveying the property of the-husband with release of dower by the wife. We think the evidence renders it quite clear that such a mistake was made.in the execution of this deed, and that the plaintiff is entitled to the relief he asks.

Decree for flmntiff.

Scott, C. J., and White, Hay, and McIlvaine, JJ., concurred.  