
    E. A. JOHNSON et als. v. LANDY JOHNSON et als.
    (Filed 15 November, 1916.)
    Deeds and Conveyances — Correction—Eraud—Burden of Proof — Quantum of Proof — Instructions—Appeal and Error.
    A party seeking to correct a written deed by reason of the mutual mistake of the parties or a mistake of one induced by the fraud of the other, must establish his case by clear, strong, and convincing proof; but to set aside a deed for fraud, undue influence, and the like, the proof required is .by the greater weight of evidence, as in ordinary civil issues; and where a suit is brought to reform a deed, absolute in terms, on the ground that the parties intended it for a mortgage of lands, and also as to its correction and procurement by fraud or undue influence, a charge by tbe court applying to both these issues, that the plaintiff was only required to establish his position by the greater weight of the evidence, is reversible erripr to the defendant’s prejudice.
    Civil actioN tried before Justice, J., and a jury, at May Term, 1916, of ElCHMOND.
    Tbe complaint set forth a cause of action to set aside a deed for land on tbe ground of fraud and undue influence. By amendment, a clause was added to correct tbe deed, on allegations tbat tbe same, absolute in terms, was intended by tbe parties as a mortgage and tbat tbe clause of redemption bad been omitted by mistake. There was general denial in tbe answer and, On issues submitted, tbe jury rendered tbe following verdict:
    1. In tbe execution of tbe deed referred to in tbe complaint, was tbe clause of redemption omitted by ignorance or mutual mistake of tbe parties? Answer: “Yes.”
    2. Was tbe deed intended by all tbe parties to be a security only for tbe debt? Answer: “Yes.”
    3. Was tbe deed referred to in tbe complaint obtained from Aaron Johnson by fraud or undue influence on tbe part of tbe defendants? Answer: “No.”
    4. Was tbe deed referred to in tbe complaint obtained by fraud or undue influence from Eliza Johnson on tbe part of tbe defendants? Answer: “No.”
    Judgment on tbe verdict declaring tbe deed a mortgage and giving plaintiff right to redeem, etc.
    Defendant excepted and appealed.
    
      B. Y. Poole, J. P. Cameron, and Brittain & Brittain for plaintiff.
    
    
      A. B. McPhail, JS. A. Harrill, and W. C. Davis for defendant.
    
   Hoke, J.

It is tbe established principle in this State tbat when tbe purpose of tbe suit is to correct a written deed by reason of tbe mutual mistake of tbe parties or tbe mistake of one induced by tbe fraud of tbe other, plaintiff is required to establish bis position by clear, strong, and convincing proof; but when a party seeks to set aside a deed for fraud or undue influence or for mental incapacity and tbe like, be is only required to. make good bis allegations by tbe greater weight of tbe evidence, as in ordinary civil issues. This distinction, announced and fully discussed in Harding v. Long, 103 N. C., 1, has been repeatedly approved in our decisions. Glenn v. Glenn, 169 N. C., 729; Lamb v. Perry, 169 N. C., 436; Hodges v. Wilson, 165 N. C., pp. 323-333; Lamm v. Lamm, 163 N. C., 71; Culbreth v. Hall, 159 N. C., pp. 588-591; Odom v. Clark, 146 N. C., pp. 544-549.

In Glenn's case the principle and the practical application of it determining the issues is stated as follows: “It is the established position in this State that where a defendant holds under a deed formally conveying to him the legal title to real property, and a claimant is seeking to correct a mistake in the instrument or annex a condition to it or engraft a trust upon it, he is required to make out his claim by clear, strong, and convincing proof (Cedar Works v. Lumber Co., 168 N. C., 391; Ely v. Early, 94 N. C., 1), a position held to prevail in case of formal written instruments conveying personalty (White v. Carroll, 147 N. C., 334), and to written official certificates of officers given and made in the course of duty. Lumber Co. v. Leonard, 145 N. C., p. 339.” And, in further application of the principle, it has been also held that “When the testimony is sufficient to carry the case to the jury, as on an ordinary issue, the judge can only lay this down as a proper rule to guide the jury in their deliberations, and it is for them to determine whether, in a given case, the testimony meets the requirements of this rule as to the degree of proof. Gray v. Jenkins, 151 N. C., pp. 80 and 82, citing Cuthbertson v. Morgan, 149 N. C., 72, and Lehew v. Hewett, 138 N. C., 6. It is also fully recognized here that this rule as to the quantum of proof does not obtain in suits to set aside deeds or other written instruments conveying property for lack of mental capacity, or for fraud or undue influence, or because made' with intent to defraud creditors, etc.; plaintiff, in such cases, being required to establish his allegations by the greater weight of the testimony.”

In the present case the court, in either aspect of the case and in reference to both sets of issues, charged the jury that plaintiff was only required to establish his position by the greater weight of the evidence, a charge to which exceptions were duly taken and which was erroneous as to the two -issues on the question of correcting the mistake, the issues that” were answered against the defendant.

For the error indicated, defendant is entitled to a new trial, and the same is allowed on all of the issues.

New trial.  