
    JANUARY TERM, 1844.
    Benjamin G. Simmons, et al. v. Elisha North, et al.
    Courts of equity will interfere to correct mistakes between the original parties, or those claiming under them in privity, as heirs, devisees, legatees, assignees, voluntary grantees, or judgment-creditors, or purchasers from them with notice of the facts.
    N. being indebted to S. & Co., executed a deed of trust, on, among other things, the N. E. quarter of sec. 33, in township 19, of range 7, east, which deed of trust was duly acknowledged and recorded. It was afterwards discovered that N. intended to convey, and thought he had conveyed, the south-east quarter of said section, instead of the N. E. quarter ; that N. lived on the S. E. quarter, ajjid had no interest whatever in the N. E. quarter; and the insertion of the latter instead of the former, was a .mistake of the draftsman of the deed. After the discovery of the mistake, N. gave a power of attorney to thp trustee to rectify it, which was duly recorded. Judgments were obtained against N. after the execution of the deed of trust, and before the discovery of the mistake. On which, executions were issued, and levied on the said S. E. quarter of sec. 33, which was sold by the sheriff, and bought by K., who afterwards conveyed the same to L. On the day of the sheriff’s sale, the trustee attended and made proclamation of the above facts on the ground, and warned all persons from buying; held, that a court of equity will take jurisdiction, order the mistake in the deed of trust to be corrected, and the sheriff’s deed to be given up and cancelled.
    Error from the District Chancery Court.
    B. G. Simmons & Co., and William W. Curtis, filed a bill of complaint in the Vice Chancery Court, at Carrolton, to the June term, 1842, against Elisha North, James A. Kennedy, T. F. Lindsey, and Y. M. Lindsey ; alleging, that on the 16th October, 1839, North purchased of B. G. Simmons & Co. a negro woman and child, for whom he executed his promissory note for the sum of $1200, payable on the 1st of March, 1840, to secure the payment of which, North executed a deed of trust to one Charles Calhoun, as trustee, conveying said negro woman and child, and also the north-east quarter of section thirty-three in township nineteen, range seven, east. Said deed was duly acknowledged, and recorded on 12th December, 1839. The trustee was authorized to sell said property at the maturity of the note, if it should nqt then be paid. The note was not paid at its maturity, and on the 30th of November, 1840, the trustee, according to the directions of the deed, sold the negro woman and child at public auction; and the note was credited with the sum of $606, the proceeds of sale. The bill further alleges, that it was discounted on the 8th of October, 1840 ; that a mistake was made in drafting said deed, in this : that the south-east quarter of section thirty-three, &c., should have been inserted, instead of the north-east quarter; that immediately after this mistake was discovered, North authorized the trustee, by power of attorney, to alter and amend said deed in that particular. This power of attorney was recorded on the 26th of October, 1840. After the execution and recording of said power of attorney, the trustee advertised the said south-east quarter of section thirty-three, &c., for sale, according to the directions of the deed of trust, and for the purposes therein named ; and on the 15th of February, 1841, complainant, Curtis, became the purchaser. North lived on said south-east quarter at the time said conveyance was made, and complainants believe that he had then no other land in the county in which it lies, and that he had no title of any description to the said north-east quarter ; that the deed was drafted by the trustee, and he, by mistake, inserted the north-east quarter instead of the southeast quarter, which it was the expressed intention of North to convey. That on the 29th of September, and 1st of October, 1840, several judgments were rendered against North in the Circuit Court for the county in which the said land lies. That executions, issued on said judgments, were levied on said land, and it was sold by the sheriff on the 4th of January, 1841, for the sum of $253, the defendant, Kennedy, being the purchaser. That Kennedy after-wards sold the land to defendants, T. F. and V. M. Lindsey, to whom the sheriff executed a deed for the same. That the sheriff levied on said land, knowing that said deed and power of attorney were on record, and knowing the mistake which had been made in drafting the deed ; that the trustee, on the day of sale by the sheriff, made proclamation of those facts, and warned all persons from purchasing ; and that said Lindseys had notice of the adverse title, or claim to the land, at the time they purchased, and that Kennedy guaranteed to them a good and sufficient title to the same. The bill prays that North be decreed to execute a good and sufficient title to the said south-east quarter section of land, to the said trustee ; and that the other defendants be prohibited from setting up their titles acquired with notice, &c., and for general relief. The process was not served on North, nor publication made against him. The other defendants filed a general demurrer to the bill, which was sustained by the Vice Chancellor, and the bill dismissed. And the complainants have brought the cause to this Court by a writ of error.
    
      Sheppard, for complainants in error.
    The gravamen of the bill is, that there was a mistake in the description of the land conveyed by deed of trust, and presents a well recognized and plain case for the aid of a court of chancery.
    When, by mistake, a written agreement varies from the intent of the parties, by expressing something different from the truth of that intent, equity will reform it, whether it be executed or executory. 1 Story’s Equity, 164,-165 ; Sugden on Vend. marg. page 189, 190. This equity is enforced against all parties, and privies, and purchasers claiming under them with notice, lb. 208.
    North gave the trustee a written power to reform the deed, and then Curtis purchased at the trustee’s sale ; it is evident that he acquired a title covered and protected by this equity, and which would be confirmed by a court of chancery, against the claim of any mesne incumbrancer with notice of the mis'take and adverse claim of cestui que trusts.
    
    The defendants, who demurred to the bill, had purchased the land at sheriff’s sale, under judgment rendered long subsequent to the execution and record of the trust-deed, and were warned by the trustee not to purchase, and are charged with notice of all the facts on which complainant’s equity, arises.
    Their title is not shielded by the judgments under which they purchased. The judgment-creditor had but a mere lien, which vested in him no interest, neither jus in re nor ad rent. And this lien cduld attach only on the actual estate or interest of the judgment-debtor, all latent and outstanding equities being protected. And the purchaser at the sale could merely acquire an interest co-extensive with that of the debtor ; it is true, his title would be protected against latent equities of which he had no notice. In the matter of How & Wife, 1 Paige’s Ch. Rep. 128 ; Sandford v. McLean, 3 Paige’s Ch. Rep. 123. From this view, we think the Vice Chancellor erred in dismissing the bill.
    
      Wm. G. Thompson, for defendants in error.
    Courts of chancery will correct mistakes in deeds where the interests of other parties would not be inequitably affected by such interference ; and supposing they would aid the defective execution of deeds in some cases where the interests of other parties are involved, it is contended that that rule will not apply to this case. Here there was not merely a defective execution of a deed, but a total failure to convey the quarter section of land in controversy; the agreement or contract in relation to that, has not been reduced into writing ; and there was no conveyance of the land at all, either complete or imperfect, to intercept or in any way affect the lien acquired by the judgment-creditors. Any agreement or contract the parties may have made in relation to this tract of land, stood altogether in parol at the time the judgments were recovered.
    It is very plain that Curtis, one of the complainants, is an improper party to this suit, as he has no manner of interest in the matter in controversy; and for this reason the bill is fatally defective on demurrer. Cuff v. Platell, 4 Russell; King ,of Spain v. Machadd, ib. ; cited in Edwards’s Parties in Chancery, third paragraph on page 14.
   ,Mr. Chief Justice Sharkey

delivered the opinion of the Court.

The bill alleges that North, being indebted to B. G. Simmons & Co., executed a deed of trust on a negro-woman and her child, and the north-east quarter of section thirty-three, in township nineteen of range seven, east, to secure the payment; which deed bore date on the 16th of October, 1839, and was recorded on the 12th of December following. That North failed to pay, and the trustee proceeded to sell; but prior to the sale, it was discovered that there was a mistake in the description of the land intended to be conveyed ; that instead of the north-east quarter,' it should have been the southeast quarter, which mistake occurred by the mistake of the draftsman. In consequence of the discovery of the mistake the sale of the land was postponed. North thereupon gave to Calhoun, the trustee, a letter of attorney, authorizing him to reform the deed of trust, which letter bears date on the 8th of October, 1840, and was acknowledged and recorded in the county where the land lies. On the 15th of February, 1841, the trustee proceeded to sell the land, and the complainant Curtis became the purchaser. On the 29th of September and 1st of October, 1840, several jndgments were rendered by the Circuit Court of the same county against North, on which executions issued, and the sheriff, knowing of the deed of trust, levied on the land conveyed therein, and on the 4th of January, 1841, proceeded to sell, and James A. Kennedy, one of the respondents, became the purchaser; at which sale, Calhoun, the trustee, gave public notice of the deed of trust, and of the letter of attorney, and the mistake which it was intended to rectify. Kennedy conveyed the land to the other respondents, and the bill charges them with buying with full notice of the incumbrance. The prayer is for discovery, and that the deed may be reformed, and also for general relief. T. F. Lindsey and Y. M. Lindsey demurred, and the Vice Chancellor sustained the demurrer.

That courts of equity may carry out the intention of contracting parties, is a question which is beyond dispute. This is a prominent feature in equity jurisdiction. If such mistakes could not be corrected, the meaning and intention of parties would often be defeated. Courts of equity will not interpose in doubtful cases, or on slight proof; but when the case is clearly made out, either by the admission of the contracting party, or by proof, the jurisdiction is invariably exercised. And it is a power which is not confined to any description of contract; it extends to executed as well as executory contracts, however solemn they may be in their character. When the mistake is admitted, then it is said there is no difficulty ; then there is an equity dehors the deed or instrument, and the power to relieve is said to be quite as clear when the mistake is shown by proof either written or parol; and it is not regarded as an infraction of the rule which prohibits the introduction of parol testimony to explain or vary written instruments, but it is an exception to that rule, founded on the reason of the rule itself; to wit, a desire to suppress fraud, and promote good faith and confidence in the observance of contracts. Nor does this rule fall within the operation of the statute of frauds, which requires certain contracts to be in writting. It is applied to cases falling within that statute, as well as those which are not within it. 1 Story’s Equity, 164 to 167.

The facts of this case, apart from the judgments subsequently acquired, are such as to entitle the complainants to relief. The bill charges the mistake, and avers also that North did not own the quarter section of land described in the deed, but that he owned and resided on the one intended to be described. North, by giving a power of attorney to correct the mistake, admitted that it had occurred. The power of attorney, although not under seal, and perhaps therefore insufficient to justify a correction of the deed, is still sufficient as a matter of evidence of the understanding and intention of the parties. It is a written admission of the mistake. It is made an exhibit, and fully explains its object. Apart then from the interest of third persons, there can be no‘question but that a court of chancery ought, under the circumstances of this case, to grant the relief, or at least ought not to have sustained the demurrer.

But what is to be the effect as to the purchasers at the sheriff’s sale under judgments rendered subsequent to the execution of the deed, but prior to the discovery of the mistake and the execution of the power of attorney ? As a general rule, courts of equity will not correct mistakes to the prejudice of innocent purchasers, and the bill charges the purchasers at sheriff-sale, and their vendee, with notice. But suppose the judgment in general to operate as a lien, and that purchasers under such lien are not affected by notice ; still the inquiry is, was there such a lien in this case as would protect them ? This was a case in which there was an equity dehors the deed. The written admission of North was at least equivalent to his answer confessing the mistake. It was such an admission of the equity as to entitle the complainant to protection under the circumstances, even against a judgment lien, for in chancery the equities are considered, notwithstanding the judgment lien ; the judgment is considered as attaching subject to the equities of other parties. North, then, had nothing on which the lien could attach, or if he had,'it was but an apparent legal title, covered by a superior equity. Judge Story says, that courts of equity will interfere to correct mistakes between the original parties, or those claiming under them in privity, as heirs, devisees, legatees, assignees, voluntary grantees or judgment-creditors, or purchasers from them with notice of the facts. 1 Paige’s Rep. 280. ■

The defendants are purchasers with notice. The case of Gouveneur v. Titus, 6 Paige’s Reports, was in every feature like the case at bar, and is a direct authority.in favor of complainants. The decree of the Vice Chancellor sustaining the demurrer must be reversed, and the cause remanded.  