
    Ring v. Ashworth et al.
    
    A court of equity possesses jurisdiction to correct a mistake in a written contract, and then to decree a specific performance of the contract as corrected.
    The admission of parol evidence to show fraud or mistake in a written contract, forms an exception to the general rule, which excludes such evidence to control or vary a written contract.
    While such proof is admissible, it is equally true that the mistake must be made entirely clear, and established by the most satisfactory proof.
    A complainant in chancery, may ask for the correction of a mistake in a written contract, and that it be specifically enforced, when so corrected.
    
      A party seeking a specific performance of a written agreement, stands in no different position as to his right to have a mistake in the contract corrected, than a party resisting such specific performance.
    "Where in a proceeding to enforce the specific performance of a contract to convey real estate, it appeared that the land was described in the contract as follows: “fifty-nine 37-100 acres of land, being so much of the west half of the northeast quarter of section twelve, in township eighty-one, north of range six of the fifth principal meridian;” and where it was objected that the contract was void, for uncertainty in the description of the land; Held, That the description was not so uncertain as to render the contract void.
    
      Appeal from, the Clinton District Court.
    
    This is a bill in chancery by tbe vendee, seeking to reform, and. also to compel tbe vendor to specifically perform, á written contract for tbe conveyance of certain real estate. Tbe respondents demurred to tbe bill, for tbe following reasons :
    1. Tbat tbe court bad no jurisdiction to correct tbe mistake in tbe contract, and then decree a specific performance of the contract, when so corrected.
    2. Tbat tbe description of a part of tbe land, was so indefinite, tbat no particular tract of land is, or can be, designated by metes and bounds.
    Tbe demurrer was sustained, and tbe complainant refusing to amend bis bill, tbe same was dismissed. Tbe complainant appeals.
    
      Lefflngwell & Cotton, for tbe appellant.
    Tbe right of a court of equity to correct a mistake in a contract for tbe sale of land, and enforce a specific performance, according to tbe original intention of tbe parties, is fully recognized by tbe authorities. Story’s Equity, § 160; Adams’Equity, 260, and notes; Bradford, v. Union Banlc, 18 Howard, U. S. 57; Wall v. Arlington, 13 Geo. 88 ; Gillespie v. Moore, 2 John. Oh. 144; Bellows v. Stone, 14 N. If. 175 ; Staplybun v. Scott, 13 Yes. 425. And when by a part performance, the contract has been executed, all tbe authorities agree tbat this right vests in tbe court. Woollam v. Hearn, 2 Leading Cases in Equity, part 1, 571; Adams’ Equity, 260, and note.
    The objection that one piece of land is indefinitely described, cannot prevail. This 59 37-100 acres, was the vendor’s entire interest in the eighty acre tract of land which is accurately described according to the government survey, and if some other person held the balance of that tract of land, as tenant in common with Ashworth, is it not proper for Ashworth to sell his interest in that tract of land? Again, if Ashworth owned the whole eighty acre tract, could he not sell the complainant the undivided three-fourths of it ? It seems to us too obvious for argument, that he could.
    The rule of construction of deeds, is laid down in Board-man et al. v. The Lessees of Ford et al., 6 Peters, 345, as follows : “If the lands granted be so inaccurately described as to render its identity wholly uncertain, it is admitted that the grant is void. The meaning of the parties must be ascertained by the tenor of the writing, and not by looking at a part of it; and if a latent ambiguity arise from the language, it may be explained by parol.” If this be the correct rule, the plaintiff’s bill should not have been dismissed, but the ambiguity as to the interest sought to be conveyed to complainant in the eighty acre tract of land, could have been by him shown by parol to have been an undivided interest of 59 37-100 acres, in said accurately described eighty acres, which said eighty acre tract, is the least known legal subdivision which will answer the call for 59 37-100 acres, and which is the only fair, legal construction, which can be placed upon the contract.
    
      Whitaker & Grant, for the appellees.
    This was a bill in equity to correct a mistake in a written contract,, to convey certain pieces of land, and to specifically enforce the contract as corrected. The defendant demurred to the bill on two grounds:
    1.. A court of equity had no jurisdiction to correct a mistake in a contract, and then enforce it, as corrected.
    
      2. Because as to one of the tracts of land, there was no description definite enough to describe the land.
    On the first point, the appellants refer to Bradford v. Union Bank, 13 Howard,-57. No such point arose in the case. Wall v. Arlington, 13 Georgia, 88. This was to correct a mistake in a deed. Gillaspie v. Moore, 2 John. .Ch. 585; Bellows v. Stone, 14 N. H. 175. This was to correct a mistake in a mortgage, a deed. In fact, it was a bill to redeem a mortgage. Napoleon v. Scott, 13 Vesey, 425. This authority is on our side of the case. What is said by Kent, in Gillespie v. Moore, is obiter. The question was- not before the court.
    The authorities in England show one unbroken stream, that there is a difference between a party seeking, and a party resisting a specific performance. And in the case of Woollam y. Hearn, 7 Vesey, 211, cited and commented upon, in 1st part 2 White & Tudor’s Equity Cases, 510, it is laid down, that a plaintiff cannot show a parol variation of a contract to convey, and then have equity to enforce it, because it is against the statute of frauds for him to do so.
    “By the rule of law,” (Leading Cases, 514 top, 361 margin,) “ independent of the statute, parol evidence cannot be received to contradict a written agreement. To admit it for the purpose of proving that the written agreement does not contain the real agreement, would be to receive it for every pm> pose. It was to shut out this inquiry, that the statute of frauds was adopted.” To the same point, are Higginson v. Clowes, 15 Vesey, 516; Clinan v. Cook, 1 Sch. &Lef. 38, 39; Clowes v. Higginson, 1 Vesey & B. 524; ■ Winch v. Winchester, 1 lb. 375 ; Clarke v. Grant, 14 Vesey, 519; JRichY. Jackson, 6 lb. 335; Brown -v. Clancey, 4 Black. 514; OgilvieY. Foljambe, 3 Merivale, 53, 63; Townsend v. Stangroom,, 6 Vesey, 328; Baker v. 'Paine, 1 lb. 457; GordonY. Uxbridge, 2 Maddox, 106; Allyland v. Sitnell, 1 Younge & Collyer, 559, 582; Maurer v. Bach, 6 Hare, 443; Nurce v. Lord Vernon, 13 Beavan, 254. In Allyland v. Sitnell, 1 Y. & C. 582, the judge says: “ I confess I should have great difficulty in holding this could be done, because I cannot help feeling, that in case of an executory agreement, first to reform and then to decree an execution of it, woulá be virtually to repeal the statute of frauds.”
    In all the American cases, where the question was properly before the court, the same decision, for the same reason, has been made. Brooks v. Wheelock, 11 Pickering, 439; Osborne v. Phelps, 19 Conn. 63 ; made after Judge Kent’s obiter in Gillespie v. Moore, and Story’s approval; Westbrook v. Harlem, 2 McCord’s Eq. 112 ; Miller v. Chitwood, 1 Green. C. 199 ; Best v. Stone, 2 Sand. Ch. 298, a recent decision in New York; Elder y. Elder, 10 Maine,, 80, which reviews Gillaspie v. Moore. The note of Hare in Woolam v. Hearn, is very able and deserves examination.
    The citation of the other side, about part performance, is erroneous, both as to page and principle; the page is 518 top, 366 margin, right column near the bottom, and is this: “ Where, however, a parol variation has been part performed, a specific performance of the written agreement, with the variation, will, be decreed.” Here lies the reason of the decisions of equity in correcting mistakes in deeds — because the vendee has possession of the land intended to be conveyed. In the case at bar, the part performance was on the written agreement, not the parol variation. We think this question would have more properly arisen on an answer, but as the plaintiff knew the defendant would deny any mistake, we adopted this mode to hasten a decision.
    One word as to the demurrer for want of description. The authority cited is so strongly against the plaintiff, that we shall not trouble the court with others. Will the counsel on the other side, tell us what part of eighty acres is “ 59 37-100,” acres, — where does it lie? in the north part, the south part, the east, or west ? Where does the boundary begin, and where end ?
   Weight, C. J.

Two questions are presented in this case. Complainant alleges in his bill, that one parcel of the land sold him by respondents, was by mistake misdescribed in the written contract. He therefore prays, that this mistake may be corrected, and tbat respondents may be decreed to convey tbe parcel intended and designed to be sold, wbicb is specifically set ont. . In tbe argujnent, the parties bave treated this averment as denied by tbe answer, and tbe question made is, tbat a court of equity has no jurisdiction to correct a mistake in a contract, and then decree its specific performance as corrected.

On this question, tbe authorities are not uniform, but we think tbe better reasoning is in favor of tbe prayer of this bill, and against tbe position assumed by respondents.' Tbe general rule, tbat excludes parol evidence to vary or control written contracts, is well understood. Where, however, tbe terms or stipulations of a contract have been procured, suppressed, or omitted, by fraud, or imposition, courts of equity bave not hesitated to grant relief, notwithstanding tbat to admit parol proof of such suppression or omission, may be said to violate tbe general rule upon wbicb parol evidence is excluded.

To allow tbe fraud and imposition to be thus proved, however, is regarded as a proper exception to tbe general rule; for tbe rule and exception are alike found’ed upon tbat principle, wbicb would “ suppress frauds and promote general good faith and confidence, in tbe formation of all contracts.” To reject such evidence entirely, would be to allow tbe general rule, wbicb was designed to suppress fraud, “ to be tbe most effectual promotive and encouragement of it.” And upon the same ground it is, tbat equity interferes in cases of mistake.

“Acourt of equity would be of little.value, if it could suppress only positive frauds, and leave mutual mistakes, innocently made, to work intolerable mischief, contrary to tbe intention of tbe parties. It would be to allow an act, originating in innocence, to operate ultimately as a fraud, by enabling tbe party who receives tbe benefit of tbe mistake, to resist tbe claims of justice, under tbe shelter of a rule formed to promote it. In a practical view, there would be as much mischief done by refusing relief in such eases, as there would be introduced by allowing parol evidence in all cases, to vary written contracts.” Cases of fraud and mistake, then, properly form exceptions to the general rule, which excludes parol evidence to control or vary the written contract; and though exceptions, they, stand upon the same policy as the rule itself. But while such proof is admissible, it is equally true, that the mistake must be made entirely clear, and established by the most satisfactory proof. In the Marquis of Townsend v. Stangroom, 6 Vesey, 328, Lord Eldon said, that he owned that those who undertook to rectify an agreement, by showing a mistake, undertook a task of great difficulty, but he could not say that such evidence was incompetent. And in Gillespie v. Moore, 2 Johns. Ch. 596, the chancellor-says, that “ the cases concur in the strictness and difficulty of the proof, but still they admit it to be competent; and the only question is, does it satisfy the mind of the court?” And to the same effect, are the authorities generally. Story’s Eq. Jur. §§ 152, 162 and note 1, to § 161; Keiselbrack v. Livingston, 4 Johns. Ch. 144; Bradford v. Union Bank, 13 How. 57.

Assuming then, that parol proof is admissible to show the mistake, is it competeüt for complainant to ask for such correction, and a specific performance of the contract ? It is said in the argument, that the rule is different where a party is seeking, from what it is when he is resisting, a specific performance, and this distinction appears to be recognized by the English authorities. And it is therefore claimed, that while the respondent may be allowed to show in defence that there was a mistake in thé written agreement, and thus resist the specific performance as prayed; and while equity might for him, reform and correct the contract, whether the alleged mistake was set up by answer or cross bill, yet the same relief will not be extended to the party who, as complainant, seeks similar relief. To our minds, there is no room for this distinction. So far as the introduction of proof to show mistake, may be said to violate the statute of frauds, it must be very evident that it can make no difference, whether it comes from the complainant or respondent. And the same is true, where the abjection is that it tends to contradict or vary the written agreement. There is certainly as much good sense and justice in saying, that a complainant shall have the right to insist upon the specific performance of his bond as written, without change, by the introduction of parol proof, as there -is in giving to respondent such right, and denying it to complainant. And why, on the other hand, the complainant, if a'mistake has occurred to his prejudice, may not set it up, when seeking relief, in like manner as the respondent may when resisting the relief, we cannot conceive. As we view ■the mutual rights of the parties in a court of equity, and the jurisdiction and duty of the chancellor, the distinction is narrow, and unsupported by either reason or justice.

It is said, that a court of equity is not like a court of law,' bound to enforce a written contract; that it may exercise its discretion, and where a specific performance is sought, may leave the party to his legal remedy; and that, therefore, if the respondent by his answer, insists upon a mistake in the written agreement, the chancellor may correct it as claimed by him, and base his decree upon the agreement as thus corrected, rather than either dismiss the bill entirely, or grant the strict prayer of the bill, which appears by the answer and proof to be against conscience and justice. But, if equity will thus guard the respondent, when such decree would be inequitable, it would seem but reasonable, and a legitimate part of the same -doctrine, that complainant should in like manner, be relieved against any mistake in the contract, and that relief granted him which may seem just and conscientious. It is not controverted, but that he might be relieved, by having a contract founded in mistake of material facts, set aside, canceled, or modified. Butit is objected, that he cannot reform and so vary it by parol evidence, and then have it specifically performed, as thus varied and established. We think the doctrine is based, in most of the cases, upon the impropriety of admitting parol evidence to contradict a written agreement. And it is well said in the note to section 161, Story’s Eq. Juris., that “ this rule is not more broken in upon by the admission of it, for the complainant, than it is by the admission of it for the respondent. And the same is true, where the objection is, that such proof, and the granting of such relief, is in violation of the statute of frauds; for it requires no argument to show, that it would be quite as inconsistent to allow the respondent to seek that shelter against a complainant seeking the specific performance of a contract, and the correction of a mistake, as to enforce a contract against a respondent, which embodies a mistake to his prejudice.” Indeed, if the jurisdiction of courts of equity to reform written contracts, and to decree relief thereon, is once acknowledged, (as it is most clearly by the books), there is no principle upon which the cases, which make a distinction between the rights of complainant and respondent, can be supported.

It is also claimed by respondents, that the case of Bradford v. Union Bank, 13 Howard, 57, is not pertinent to the question before us. A brief reference to it, however, will show that it recognizes the rule contended for by complainant. Several of the English authorities are there cited, which are admitted to refer more particularly to the right of defendant, to have a decree for a specific execution of the agreement, according to the answer, so that he may be saved the expense of a cross bill, even against the claim of the complainant to have his bill dismissed. But, says the court, “ the same principle seems to be equally applicable to the complainant, when he insists on the decree for a specific performance of the contract, as established by the proof, although different from that set up in the bill. Indeed, we perceive no valid distinction between the two cases. In both, the contract of course, when ascertained and conformed to the real understanding of the parties, must be such a one as the court deems fit and proper to be enforced,” — referring to 2 Dan!. Pr. 1001,1002; London and Birmingham Railway Co. v. Trenton, Craig & Phil. 62. This ruling goes even farther than is necessary for this case.

If a complainant may insist upon a specific performance of the contract, as established by the proof, although different from that set up in his bill, much more clearly may he do so, when he establishes by proof, that contained in the bill, though that may vary from the one set out in the written agreement. And this right of the court, to reform the contract, and decree relief, extends to those which are executory, as well as those executed. “ Hence,” says Story, in section 159, Eq. Juris., “ in preliminary contracts for conveyances, settlements, and other solemn instruments, the court acts efficiently by reforming the preliminary contract itself, and decreeing a due execution of it, as reformed, if no conveyance or other solemn instrument, in pursuance of it, has been executed. And if such conveyance or instrument, has been executed, it reforms the latter also, by making it such as the parties originally intended.” See also Gillespie v. Moore, supra, and the authorities there cited; and also, 4 Johns. Ch. R. 144; Story’s Eq. Pl. § 394; Warburton v. Lauman, 2 G. Greene, 420.

The second, and only other question in the case is, whether the written contract, as to one parcel of the land, is void for uncertainty in its description ? This tract is described as follows: “fifty-nine 37-100 acres of land, being so much of the west half of the northeast quarter of section twelve, (12), in township No. eighty-one, (81), north of range six, (6), of the 5th P. M.” Counsel have argued this question very briefly, and cite but few authorities. We have, however, examined it with some care, and conclude, that for the. purposes of this case, such description is not so uncertain as to render the contract, as to it, void. If this was an action of right, brought for a specific portion of this eighty, and plaintiff) to prove his title, had introduced his deed containing this description, the question, we think, would have been different. In that case, the court could not have ascertained from his deed, that he had title, to, the identical portion claimed by his petition. And yet, between him and his grantor, the deed would have been sufficient to pass that amount1 of interest in the eighty acres.. Under such a deed, as between them, he would have a lenown interest in said west half of the northeast quarter, &c. It might not be a known interest, in exact location, but definitely so as to amownt. It would certainly have been as much so, as if his deed had said one-third, one half, or two-thirds, of such eighty. Under such a deed, we cannot believe that the grantor could claim that his grantee had no'title as against him. And if this be true, how is it different as between them, whether the deed describes the amount of interest in acres, instead of by fractional parts ?

And when considered as an agreement to convey, between the parties to it, we think the question presents even less difficulty. ■ As a starting point, we have in the contract a specified and known eighty acres, clearly described and located, a definite portion of which, in number of acres, respondents sell, and undertake to convey to complainant. There is, therefore, no difficulty in ascertaining where to find the land, for we know it is to be so much of the eighty acres. But, it is asked, from what part is this fifty-nine 37-100 acres to be taken ? where will the boundary commence, at the east, west, north or south line, or at what corner of the eighty ? For the purposes of this case, is it material to answer these inquiries, or does it necessarily follow that this amount is to be taken from any particular portion of the tract ? Complainant purchased, and respondent undertook to make him a deed to, “ fifty-nine 37-100 acres of land, being so much of the west half;” &c.. For anything that is shown, they may have owned an undivided interest to this amount in that tract; or they may have title to this extent, to a specific portion of it, and in either event, why should they not be decreed to convey it as required by their undertaking ?

By their bond, they covenant that they have title to this number of acres in that eighty acre tract; in the same instrument they acknowledge the receipt of a portion of the purchase' money; and how can they claim that the contract is void for uncertainty, when complainant insists that they shall be required to convey by the very description used in ■ their contract ? It seems to us, that it is not for them to avoid their undertaking, on any such ground, or that they should not object, while he only asks that they shall convey to him that interest in a certain tract of land, which „they undertook to convey. After he obtains this title, it may become a question between bim and the person bolding title to tbe remaining portion of the eighty, as to what part or portion each takes, in that case the description used may become of more importance. He may have to institute further proceedings, by his suit for partition or otherwise, to settle and definitely fix his rights, but these are after considerations, in which these respondents, as far as we can see, have now no interest. At present, the complainant elects to insist upon a conveyance of the land, by the description used in the bond. This, we think, is his right.

Decree reversed.  