
    KIRK VS. ZELL ET AL.
    In Equity.
    No. 2706.
    I. K. purchased land of S. and gave instructions to a scrivener to prepare a deed that should convey one portion of the premises to him upon certain trusts, and the remainder in fee-simple. By a mistake of the scrivener the whole of the premises was conveyed upon trusts. Held, that the deed should be reformed in order to give effect to the intentions of the parties.
    II, The deed was executed in 1856 and the bill filed in 1872; but K. did not discover the mistake till 1861, and was absent from the city till 1865. He had control of the premises, made improvements, paid taxes, and carried on business there ever since. No adverse interest had been acquired, and no one.iujured or misled, and the mistake being clearly established, the court under these circumstances excused the laches in bringiug suit and granted the relief asked for.
    STATEMENT OE THE CASE.
    The bill is filed to reform a deed of trust from one Hugh D. Sweeney to the plaintiff. It sets forth that the complainant purchased the land fronting 106 feet on Seventh street, in the city of Washington, from said Sweeney in the year 1851, and at once entered into possession of the premises, but the deed was not executed until December 20,1856. That he gave instructions to one Thomas Donn, then a justice of the peace, to prepare an instrument conveying all the property to the plaintiff in his own right, except 25 feet front, purchased by Mrs. Zell, who is the plaintiff’s sister, and which was to be conveyed to the complainant in trust for said MrsZell during her life, and at her death in trust for her children.
    Thátsaid Donn by mistake sodraughtedtheinstrument that all of said property was conveyed to plaintiff in trust, contrary to the intention of all parties thereto, and was executed in this form by said Sweeney without examination; that complainant has continued in possession of said land, except the 25 feet intended to be conveyed to him in trust as aforesaid, either by himself in person, or by his tenants to the present time. That he has paid the taxes and made valuable improvements thereon, and that said mistake was not discovered by him until recently. The bill concludes with a prayer for reformation of the deed, so as to give effect to the intention of the parties.
    There was a decree pro confesso as to all the defendants except E. F. Zell, husband of Mrs. Zell, who in a separate answer admits the purchase by the complainant, but he alleges that he requested him to purchase a piece of land for himself? but he did not inquire how much land was purchased, and did not see the deed until five years after it had been recorded, and that he rested under the same, and made improvements. Denies that it was the understanding that only 25 feet were to be conveyed in trust, and he urges the staleness of complainant’s demand. That he has no personal knowledge of instructions to Donn, and does not know when complainant discovered the mistake.
    No testimony was taken in support of the answer, and Kirk states in his deposition that he employed Donn to prepare the deed from Sweeney, and sustains by his own oath, and that of others, all the allegations in the bill in respect to the mistake in the deed, and as to his having been in possession and control of the property, and paying taxes and making improvements thereon.
    With regard to laches of the complainant in filing his bill, his testimony shows that he possessed and controlled the property without any claim being set up by the defendants. That the mistake was not discovered until 1861, and that he left the city at that time and did not return until 1865, and that during his absence his brother-in-law, the said Zell, attended to his business as general agent; and that both Zell and his wife knew of the improvements, and admitted Kirk’s individual right to the whole of the remaining 78 feet as his own separate property.
    At the hearing in the court below, the bill was dismissed, and the cause is here upon an appeal from that decree.
    
      R. Ross Perry, for complainant,
    cited the following authorities to illustrate the doctrine of courts of equity in relation to laches: 2 Story’s Eq. Juris., § 1520 and note; Hillary vs. Waller, 12 Vessey, jr., 365; Prevost vs. Gratz, 6 Wheaton, 481; Elmendorf vs. Taylor, 10 Wheaton, 168; McKnight vs. Taylor, 1 Howard, 161.
    
      
      John E. Norris for defendants.
   Mr. Justice MacArthur

delivered the opinion of the court:

From the evidence in the cause we think it is quite clear that there was a mistake in the deed from Sweeney to the plaintiff. We are perfectly satisfied that the agreement was to convey only 25 feet fronting on Seventh street in trust for Mrs. Zell and her children, and that the remainder of the premises was to be conveyed to Kirk in his own right. By the mistake the defendants would acquire a beneficial interest in four times as much land as they were entitled to according to the understanding and agreement of the parties. The jurisdiction of a court of equity to grant relief on account of mistake of facts, and to reform contracts in accordance with the intent of the parties, is an established principle, and we think the complainant has a right to our interposition unless he is deprived by the lapse of time of this title to relief. We are all of opinion that he is not barred of his remedy, in view of the facts of this cause, by reason of the length of time that has elapsed since the execution of the deed. The mistake is clearly made out and was not discovered till 1861, and from that period the defendant was absent from the city till 1865. During his absence Zell had charge of his business and rendered accounts thereof, including the property in question, on his return. There is nothing like adverse possession presented upon the proofs, nor of improvements having been made by Zell on his own account, except on the 25 feet about which there is no dispute. Mere lapse of time is undoubtedly an equitable defense, but where the delay is accounted for the court will excuse it. There is the most complete proof in the cause that no adverse interest has been acquired; that the party asking relief has been constantly in possession of the property or of the rents and profits thereof, and that no one has been iujured or misled by his laches. We are, therefore, of opinion that the decision appealed from must be reversed and a decree made for the reformation of the deed as prayed for in the bill.  