
    Henry C. McRae, et. al., Appellant, vs. Adaline McMinn, Appellee.
    1. If it is shown that an Instrument of writing expresses something different from the real Intent of the parties, equity will reform it so as to make it conform to such precise intent. The proof must be clear.
    2. An administratrix is entitled as widow, having elected a child’s part, to one-half of an estate. The father bf her husband is entitled to one-half. Under such circumstances the administratrix, without the order of a court of competent jurisdiction, cannot distribute the estate. An instrument purporting to assign to each their respective interests, having no words of conveyance as between each other, may be effective in equity when assented to by tho parties as a contract to convey. It does not vest the legal title in either
    8. Knowledge on tho part of a vendee that another is in possession of land, he (the vendee) believing that she in possession is a tenant, coupled with notice (constructive by its record) of the contents of an Instrument relating to the land, but not passing the legal title to his grantor, in which, by a description of the topography of the land, he would be led to inquire as to the claim and interest of the party In possession, is sufficient Information, to lead the vendee to a knowledge of the nature of tho title and claim of the party In possession, and a court of equity will deem him conusant of it.
    Appeal from the Circuit Court for Alachua county.
    On the third of May, A. D. 1878, Adaline McMinn filed in the office of the Clerk of the Circuit Court for Alachua county her 'bill of complaint against Hatch Whitfield, John H. Watkins, and Henry C. McRae. She alleges substantially that William H. Whitfield died intestate without issue, leaving her, his widow, and his father, the defendant, Hatch Whitfield, surviving; that she afterwards married William L. McMinn, who has since died; that to the estate of her deceased husband belonged, in addition to other lands, certain lands which her former husband had acquired by purchase from Daniel Hope and wife, all of said lands being in the county of Hernando and State of Florida; that it was agreed between herself and Hatch Whitfield ,to divide the property equally between them; that she took out letters of administration upon the estate, fully administered thereon, and was legally discharged therefrom; that Hatch Whitfield was entirely satisfied with her acts as administratrix, and left it to her to make an equal and just distribution of the real and personal property of the estate between her and himself; that she engaged an attorney at law to make out the papers and to see that legal titles were made to the lands, giving the “title deeds” to him for this purpose; that no papers or deeds were made except the “distribution.” The land' embraced in the deed of Hope and wife to William H. Whitfield is described as the southwest quarter of the northeast quarter, and the southeast quarter of the northwest quarter, and the northeast quarter of the southwest quarter and the nowthwest quarter of the southeast quarter of section thirty-five, township twenty-three, south, range nineteen east, also the southeast quarter of the northeast quarter and the southeast quarter of the southwest quarter of section thirty-five, township twenty-three, south, range nineteen east; and the northeast quarter of the northeast quarter of section thirty-five, township twenty-three, range nineteen, south and east, and also the southwest quarter of the southwest quarter of section thirty-five, township twent},-three, south, range nineteen east, containing three hundred and twenty acres more or less. Exhibit B. which is called a distribution, is as follows: “A distribution of the estate of William H. Whitfield, late of Hernando county in the State of Florida, deceased, by Adaline Whitfield, adminis-tratrix of said estate, to Hatch Whitfield and Adaline Whitfield, January 1st, 1864.” Here follows a memorandum of the slaves set apart to Hatch Whitfield, which it is
    unnecessary to state. Then follows a description of the lands assigned to him, thus: “Lands. The following described lands of said estate are hereby distributed and set apart to Hatch Whitfield, to-wit: the northwest quarter and the west half of the southwest quarter of section thirty-six, the east half of the northeast quarter, and the east half of the southeast quarter of section thirty-five in township twenty-three, the east half of the northeast quarter and the southwest quarter of section two, the west half of the northwest quarter of section twelve in township twenty-four, the southwest quarter of section twenty-nine, and the southeast quarter of section thirty, in township twenty-three . south of range nineteen, containing about forty-five acres of land that lias been cleared, fenced and cultivated, at ,$3.75 per acre — $168.75, and about nine hundred and ninety-five acres uncleared land estimated at $1.75 per acre, $1,243.75, making in all 1040 acres--$1,412.50.” What is called the distribution to Adaline Whitfield is as to the land as follows:
    “Lands. The following lands of said estate are hereby distributed and set apart to Adaline Whitfield, to-wit: the southwest' quarter of the northeast quarter, the west half of the northeast quarter, thé west- half of the southeast quarter, the southeast quarter of the northwest quarter, the east half of the southwest quarter and the southwest quarter of the southwest quarter of section thirty-five in township twenty-three, the west half of the northeast quarter of section two, and the east half of the southwest quarter of section ten in township twenty-four, south of range’ nineteen east, containing about ninety acres of land that has been cleared, fenced and cultivated, estimated at $3.75, per acre — $337.50, and the buildings thereon estimated at $500, and about three hundred and fifty acres of uncleared land estimated at $1.25 per acre — $437.50, making in all 440 acres and-the building at $1.275.09.”
    This instrument is signed in duplicate by “Adaline Whitfield, administratrix,” and is witnessed by two persons.
    This deed of distribution, as it is called, was filed in the office of the Judge of Probate. There is a certificate of the Clerk of the Circuit Court for Hernando county appended to the instrument to the effect that what is filed is a true copy of the original, but it does not appear that the original was at any time recorded. Plaintiff alleges that it is apparent from the division of land as shown by this instrument that the buildings are set apart to her, and that she paid five hundred dollars for them. This she alleges was pen log house with shed rooms. She alleges that there a large price for the dwelling house in which she lived, and in which her husband died; that it was an old double were no other buildings of much consequence on any of the lands, other than tire dwelling, and that according to the valuation made of the estate all of them were not worth more than five hundred dollars, and that it was understood and intended that she was to have the land on which all the buildings were situated; that the draftsman who drew the “distribution” did not follow the description of the lands in the deed from Daniel Hope and wife to William H. Whitfield according to what was expected, but adopted a description of' his own; that instead of describing the lands set apart to Hatch Whitfield as the northeast quarter of the northeast quarter, and the northeast quarter of the southeast quarter of section thirty-five, township twenty-three, south, range nineteen, east, being lands acquired from Daniel Hope and wife, he described the lands as the east half of the northeast quarter and- the east half of the southeast quarter of section thirty-five, township twenty-three, south, range nineteen east; that all of this was a mistake and contrary to the intention of the parties, and that by this mistake the southeast quarter of the northeast quarter of section thirty-five, township'twenty-three, south, range nineteen east, the forty acres Of land upon which the dwelling house was situated, and which was intended “to be set apart for her, and for which she paid $500, was set off to Hatch Whitfield. The plaintiff further allegep that she thought that the land assigned to her covered the land upon which the house was situated until at a recent date a claim has been made for it by other parties; that soon after the “distribution” was signed it was admitted to record in the county where the lands were situated before any of the lands assigned to Hatch Whitfield where alienated; that she is informed and believes that Hatch Whitfield made a gift of these /lands to John H. Watkins, who, in collusion, &c., hath pretended to -convey these lands to Henry C. McRae, for the purpose of defrauding her out of the dwelling house in which she lives and for which she paid; that the said Henry C. McRae brought an action of ejectment against plaintiff for this land in the sixth circuit which has been transferred to the fifth circuit; that said McRae is not “an innocent purchaser without notice;” that said Watkins and McRae “have colluded together to defraud and harrass her by the said suit in the quiet and peaceable enjoyment of her dwelling house.” Plaintiff prays that the mistake in the instrument of distribution be corrected; that the land containing the dwelling and other houses as contemplated by the parties be set apart to her, and that other lands be substituted in lieu of the land thus taken from Hatch Whitfield, and that the necessary deeds to carry out the original understanding be decreed to be made, and for an injunction against the judgment* at law and for general relief.
    The chancellor granted the injunction.
    The defendant, McRae, answered. Plaintiffs attorney states that a decree, pro confesso, against Hatch Whitfield and John H. Watkins was taken, but the’ record discloses no such decree. The defendant, McRae, admits that there •was a distribution of the estate between plaintiff and Hatch Whitfield; that he purchased the land of defendant, Watkins, and that when he made the purchase he was not aware and had no knowledge from any source that there was any lien or demand of any kind by any person, or that any other person except Watkins had any right or title to the lands;' that he knew nothing of any payment of five hundred dollars, and that he purchased the land with the understanding between himself and Watkins that the dwelling-house was included in the sale, and that he would not have made the purchase otherwise; that he gave as a consideration for said land nine hundred acres of valuable land in the State of Alabama, and that the exchange was made in perfect good faith. He admits that the instrument of distribution was recorded before the lands were conveyed to him. The defendant alleges that after the execution of the instrument of distribution, and from March, A. D. 1864, until October, A. D. 1873, the said Hatch Whitfield owned and possessed the land, and that at this latter date it was conveyed to the defendant, Watkins, who, in "February, A. D. 1875, conveyed it to this defendant; that in 1868 or 186D plaintiff intermarried with William McMinn; that said Hatch Whitfield, being an old man in good circumstances living in the State of Mississippi, from feelings of kindness, allowed his daughter-in-law to use and enjoy said lands, she agreeing to pay the taxes thereon; which she did up to the year 1871, when, although the lands were returned, they were sold for taxes on the 22nd day of April, 1872, and he, McMinn, bought them in in his own name; that Hatch Whitfield, hearing of this attempt to defraud him of his lands, conveyed them to his grandson, Watkins, who, on the 27th November, A. D. 1872, redeemed; that defendant, Watkins, came to Florida, and, after examining the lands and the houses, determined to remove to Florida; that with this determination he left the lands in charge of McMinn and returned to Mississippi for his family; that soon thereafter McMinn died leaving plaintiff in possession of the lands; that Watkins started to remove to Florida and his wife died; that he decided to remain in Mississippi and to sell the Florida lands; that this defendant, McRae, opened a correspondence with Watkins, the result of which was an exchange of lands as aforesaid; that Watkins at once took possession of the Alabama lands; that this defendant has never seen the said Watkins; that all the negotiations were by letter and through attorneys; and that no information was ever conveyed to him by any means of any claim to the land .by any person other than the said Watkins, and lie avers that the consideration paid for these lands was valuable, adequate and made in entire good faith; that after 'receiving his deed from Watkins, and after his removal to Florida with his family, fie attempted to take possession of the lands and the dwelling and other houses thereon, when he was refused possession under a claim of title by plaintiff; that upon a survey being made it was ascertained that the houses were on his land, but that plaintiff refused, and still refuses, to deliver the land, and for this reason he has brought his action of ejectment. Defendant avers that-he is informed and believes that plaintiff never claimed these lands until he began said action, and that she knows that she is not the owner thereof; that this detention of the lands has occasioned him great loss — the profits of the orange grove and nine crops being worth from $600 to $800 per annum. Denying all fraud and collusion charged, he prays that thq bill may be dismissed.
    After replication, testimony and hearing, the cour.t decreed that the alleged mistake existed; that the real pu-pose of the parties was to distribute the land containing the houses to Adaliné McMinn, declared it to be her property and found that McRae took the deed from Watkins with such notice that he was subject to all the equities and rights to which Watkins and Hatch Whitfield were liable, and granted a perpetual injunction to tbe suit at law.
    From this decree this appeal is taken.
    The ground of appeal is simply that the decree should have been for defendant, and not for the plaintiff.
    
      Thomas F. King for Appellants.
    
      James T. Magbee for Appellee.
   Mr. Justice Westcott

delivered the opinion of the court.

We do not propose to enter into any elaborate discussion of the facts and will do little more than state conclusions in this case.

Our first conclusion is that the mistake as to southeast quarter of the northeast quarter of section thirty-five, town- • ship twenty-three, south, range nineteen east, is established.

Upon the face of the deed of “distribution” as it is called, and without reference to any parol testimony except to locate the houses, it is apparent that there was a mutual mistake arising from misdescription of the lands in this instrument. Hatch Whitfield intended that Mrs. McMinn should have the forty acres upon which the houses were situated, and she was to receive this land according to the understanding. In the instrument of distribution, (as it is called,) it is distinctly stated that she was charged five hundred dollars for the improvements, and it is shown bfeyond doubt by the evidence that the southeast quarter of the northeast quarter contained the forty acres upon which was located the dwelling house and principal improvements" In addition to this, it appears from the testimony that the improvements were on the south half of the northeast quarter, and as according to the “distribution” she was to receive ninety acres of cleared land, and there were onLy one hundred and thirty-five acreso of cleared land in the whole tract, forty-five of which were given to Whitfield, it *must have been understood that she was to have the eighty embraced in the south half of the northeast quarter, otherwise she could not have got the ninety acres of cleared land. In this instrument the parties, so far as the southeast quarter of the northeast quarter was assigned to Whitfield, expressed something different from the actual intent the parties, that intent being shown for the most part on the face of the paper, parol testimony being admitted simply to show1 the actual condition of the lands. In all such cases if the mistake is clearly made--out by proofs entirely satisfactory, equity will reform the contract so as to make it conform to the precise intent of the parties. 13 How., 66; • 8 Ala., 345: Story Eq., §152. Lord Hardwicke remarks in Henkle vs. Royal Assurance Company, 1 Ves. Sr., 317: “No doubt but this court has jurisdiction to relieve in respect of a plain mistake in contracts in writing as well ¿s against frauds in contracts, so that if reduced into writing contrary to the intent of .the parties on proper proof that would be rectified.”'

It is insisted, however, that McRae is a bona fide purchaser from Watldns without notice of any equity of Mrs.tv McMinn. In the first place it is to be noticed that Whitfield, Watkins’ grantor, as against Mrs. McMinn, had simply a-n equitable title.

oN conveyances were passed between the parties.

No conveyances were passed between the parties, estate, and the instrument itself did not propose in terms to pass any legal title from the one to the other. True it is that a court of equity might perhaps have treated it as an agreement between tbe parties, and directed at the suit of one or the other an interchange of deeds, but the legal title, so far aa this instrument is concerned, was not affected by it. In the next place it is to be noted that Watkins, McRae’s grantor, was not a purchaser lor valuable consideration from Hatch Whitfield. This deed was in consideration of love and affection. In the next place it is admitted by McRae that at the time he purchased of Watkins, he knew that Mrs. McMinn “was in possession of the property, but thought she was there as a tenant.” This was sufficient information, together with the fact of the recording' of the instrument of distribution of which he had constructive notice, to require him to enquire as to the nature of her possession.

Being held to -a knowledge of the instrument of distribution, he must be held to a knowledge not alone of the deseritpion of the land in the numbers of sections therein contained, but to a knowledge of its character and topoga-phy therein stated. That instrument states distinctly that the grantor of his grantor was to have about forty-five • acres of cleared land and about nine hundred and ninety-fiye acres of uncleared, and that plaintiff was to have about ninety-five acres of cleared land aDd the "buildings thereon, estimated at five hundred dollars. This knowledge of possession as tenant, and this constructive notice as to who was the owner of the buildings, was sufficient to put this purchaser upon enquiry, and, having sufficient information to lead him to a knowledge of the nature of Mrs. McMinn’s claim and title, a court of equity will deem him conusant of it. Notice that an estate is in possession of a tenant is held to be notice of a lease, although the purchaser took it for granted that the tenant was only so from year to year. (2 Ves., 440; 13-Ves., 121.) So if the tenant has even chahged his character by having agreed to purchase the estate, yet his possession amounts to notice of his equitable title as purchaser; -(16 Ves., 249; 2 Sch. and Lefroy, 583;

• 2 Swanst., 181; 2 Ball & Beatt., 416;) and, consequently, a subsequent purchaser, although without actual notice, will be .considered as a purchaser of the seller’s title subject to the equity of the tenant. The authorities go beyond the qase at bar. We think the general rule is, that where a person, other than the grantor, is in possession, it is the purchaser’s duty to enquire into the title; and the presumption of law is that upon such enquiry he ascertains the true state of the title. Here, in fact, the interest of each party was at most an equitable title. Under the distribution the parties had a right to compel an interchange of deeds, subject to existing equities arising from the mistakes stated. (6 Greenleaf, 258; 32 Maine, 143; 22 Maine, 312; 3 Mass., 573; 4 Mass., 638; 2 Mass., 508; 6 Mass., .489; 10 Mass., 60; 3 Pick., 152; 3 Met., 405.)

The decree in this case, as it appears from the transcript of the record, declares “the northeast quarter of section thirty-five, (S. E;% of N. B.%, S. 35, T. 23, R. 19 S. and E.,) twenty-three, range south and east,” “to be the land of complainant,” and perpetually enjoins the defendant from proceedings at law to recover it, or making any claim to it. This is evidently another mistake; either of the judge in making the decree, or of the clerk -in copying it in the transcript of the record. It is a serious error somewhere— one to be regretted. That which is written out at length here should control. What is written in parenthesis we must presume wes intended, as is usual in such cases, to state in figures what is stated at length and- is written out. This being true, the decree here strictly construed declares “the northeast quarter of the northeast quarter of section thirty-five” to- be the land of complainant. This, as a matter of course, is .all wrong. It is thus evident that we cannot affirm the decree disclosed by' this record. But there are other objections >to the decree. The plaintiff does not even pray an absolute decree of this character against McRae. She admits that he is entitled to some other forty acres in lieu of this claimed by her, and asks that other lands be assigned him.

If the defendant so desires it, he should be given another forty acres of the land assigned Adaline McMinn., He is not, however, entitled to land equal in value to five hnudred dollars. He should be given forty acres of the same general character as that embraced in the nine hundred and ninety-five acres assigned to Hatch Whitfield in what is called the distribution.

Should the defendant so desire, the court will refer the question of the allotment of forty acres to him to commissioners, who will be directed to assign to him forty acres of land in such place and at such point and of such quality as above described, as is most equitable and just to each of the parties. If the defendant can establish the precise forty to which he was entitled, and which it was intended he should have, as a matter of course that should' be assigned him. The court, after an allotment made, should decree that the title to the several parcels or portions of the land allotted to each shall vest in the respective parties as against the other parties to the suit, or those claiming through or under them. The chancellor should also direct that a copy of the decree thus rendered be recorded by plaintiff in the office of the Clerk of the Circuit Court in which the lands lie. The expense of a commission may be saved if the parties will consent to an assignment of forty acres to defendant in lieu of the forty acres as to which there was a mistake, the court, upon such consent, making the decree stated. The decree will continue the injunction.

The decree is reversed, and the case is remanded for further proceedings conformable to law and consistent with this opinion.  