
    Moses R. Dickey and others v. David Beatty and others.
    1. If a witness, having stated the material facts in relation to a transaction, superadds an immaterial fact, the judgment will not be reversed for such cause, when it is apparent that suoh immaterial fact would not prejudice the rights of the party objecting to the testimony.
    2. Where, by virtue of proceedings and an order of sale in the probate court, a guardian sells, at public sale, and conveys the land of his ward, but, by mistake, such proceedings, order of sale and conveyance, do not embrace all the land that was intended by the guardian to be sold, and was supposed to he bought by the purchaser, a court of equity will not interfere, as against the minors, to correct such mistake, and to give to the purchaser the additional land intended to be sold, and supposed to be purchased, but which was not in fact sold or conveyed.
    Error to the district court of Richland county.
    Moses R. Dickey and others, the plaintiffs herein, commenced an action in the court of common pleas of Richland county, against David Beatty and others, the defendants herein, to recover the possession of part of the northwest quarter of section thirty-four, in township twenty-one, of range eight in said county, to-wit: “ A strip of land, extending from east to west, across said quarter section lying, between one hundred and twenty-five acres off of the north side of said quarter section, and a strip thirty-five rods in width, extending from east to west, from the south side of said quarter section,” alleging, in their petition, that they had a real estate therein, and were entitled to the possession thereof.
    The defendants answered, denying that the plaintiffs had an estate in said land, or were entitled to the possession of the same. Also, as an equitable defense, and by way of counterclaim, they alleged that on the 9th of March, 1854, the plaintiffs,- the said Rachel Dickey, as the widow and the others as the heirs -at law of David Dickey, deceased, and under his will, were seized in fee simple, and were in possession of all of said quarter section of land, except, a strip thirty-five rods in width, off the south side thereof. ■ That all of said plaintiffs, then being of full age, except Noah C., Jabez, and James McBride Dickey, who were represented by Jabez Cook, their guardian, and all of said parties being desirous of selling their interest in said quarter section of land, induced the defendant, David Beatty, to purchase the same. That on the said 9th day of March, 1854, the said Beatty entered into a' written contract with them, by which he intended to purchase and did purchase, and they intended to sell and did sell, all of said quarter section aforesaid, except the aforesaid strip of thirty-five rods on the south side thereof. A copy of said contract is annexed to their answer and is made a part thereof. Beatty further avers that at the time said contract was made, and for a long time afterward, it was understood by all the parties, that said contract embraced and was intended to embrace all of said quarter section, except as aforesaid. That the said Jabez Cook, as the guardian of the said Noah C., Jabez and James, minor plaintiffs, in pursuance of said contract, filed his petition in the probate court for the sale of the interests of the said minors; into which petition and proceedings the same error of description was carried. That the said Beatty became the purchaser, according to the stipulations contained in said contract, which sale was approved by the court, and a deed ordered to be made by the guardian to Beatty, which was accordingly done. That Beatty had complied on his part with the terms of said contract, and that the said Moses R., Susan M., Nancy E., and Rachel Dickey, on the 1st day of April, 1855, executed and delivered to Beatty, deeds for their respective interest in the premises, into which several deeds the same error of description is carried, but by which description it was intended by the parties to convey all of the quarter section, except as aforesaid. That under said contract the possession of all of the quarter section, except as aforesaid, was given to him, and that he has made valuable improvements thereon, and sold portions thereof to the defendants, Dickerson and Booth.
    The defendants further state, that by a survey of said quarter section, it is found that between a strip of thirty-five rods in width, on the south side of the' quarter section, and one hundred and twenty-five acres on the north side of said quarter section, there is a strip of land of .about .four rods in width, running from east to west across the quarter section. This is the land in controversy.
    The defendants pray that said error and mistake in the description of the land so purchased, as aforesaid, may be corrected, so as to.conform to the original agreement and intention of the parties, and that said written contract and deeds may be reformed and corrected, so as to embrace the whole of said quarter section, except as aforesaid.
    The plaintiffs replied, denying the existence of any mistake.
    The cause, on appeal, was tried in the district court, without the intervention of a jury, and on the issues joined, the court found in favor of the defendants: That a mistake was made in the writing of said contract of March 9,1854, which mistake was carried into all thr deeds executed to said Beatty, as alleged by the defendants. The court thereupon rendered judgment in favor of the defendants, and ordered and decreed that the contract and deeds be reformed, and that the whole title, interest and estate of the plaintiffs in said quarter section of land, except the thirty-five rods in width, on the south side of said quarter section, be vested in the said Beatty, his heirs and assigns.
    A bill of exceptions was taken, which sets forth all the evidence in the case, and sundry rulings of the court and exceptions thereto, in respect to the admission of testimony.
    The plaintiffs moved for a new trial, but no disposition is shown by the record of such motion.
    To reverse this judgment and decree of the district court, this petition in error is prosecuted.
    It is claimed that the court below erred:
    1. In dismissing the petition of the plaintiffs, and rendering judgment for the defendants, on their counterclaim.
    2. In dismissing the petition of the infant plaintiffs, Noah C., Jabez and James McBride Dickey, and sustaining the cross petition of the plaintiffs against them.
    3. In requiring the plaintiffs to surrender to the defendants their title to the land in controversy.
    4. In permitting improper testimony to be received.
    5. In rendering judgment for the defendants, and against the plaintiffs, when judgment should have been in favor of the plaintiffs, and against the defendants.
    
      Curtis &¡ Scribner, for plaintiffs in error.
    
      JR. C. Surd, for defendants in error.
   Wilder, J.

The bill of exceptions purports to contain all the evidence given on the trial in the court below. A motion was made for a new trial, but what disposition was made of such motion does not distinctly appear. If overruled, the record no where shows that any exception was taken to the overruling of the motion. It was held in the case of Ide v. Churchill and others, decided by this court at' the present term, that a motion to set aside the finding, overruled by the court, and an exception taken to the decision of the court, upon the motion, are indispensable prerequisites to the right to review the facts upon petition in error.” We can not, therefore, review the facts in this case. The defendants, in their answer, denied that the plaintiffs had any “ real estate in,”- or were entitled to the -possession of the land in controversy. This issue being tried by the court, and found for the defendants, we are bound to presume that such finding was based upon sufficient evidence, and a judgment for the defendants properly followed. As between the adult plaintiffs and the defendants, the same is true in respect to the counterclaim of the defendants. The court found the existence of the mistake, as alleged in the counterclaim, and that it ought to be corrected. The court -thereupon rightfully proceeded as against the adult plaintiffs, by its decree, to correct the mistake and to reform the deeds.

The fourth error assigned is, that “ the court ’erred in permitting incompetent testimony to be received.” We have carefully looked through the bill of exceptions, to ascertain upon what this assignment is based, and can discover the existence of no such error.

The plaintiffs’ counsel, in their argument, point out two items of testimony which they claim to have been erroneously received.

1. They state that Beatty testified, “that he intended to purchase, or supposed he was buying, the land to and along the fence, including the strip in controversy, as certainly as any other part of the premises.” In this, counsel are mistaken. The testimony of Beatty, as shown by the bill of exceptions, was, “ the plaintiff said that he intended to purchase, or supposed he was buying,” etc.; which was clearly competent testimony.

2. That Henry C. Hedges, who reduced the contract to writing, was permitted to testify, that in describing the land sold, as containing one hundred and twenty-five acres, he intended “ thereby to comprehend the whole balance of the quarter.” The bill of exceptions shows that the witness, after relating the conversation which took place between the parties and himself at the time the contract was drawn, proceeded as follows: “ Whereupon he supposing the quarter section contained the legal quantity of one hundred and sixty acres, by mental calculation, subtracting thirty-five acres from one hunch’¿d and sixty acres, supposed there would be one hundred and twenty-five acres left, described the premises in the contact as one hundred and twenty-five acres off of the north side of the quarter, intending thereby to comprehend the whole balance of the quarter.” This testimony of Hedges indicates the manner in which he proceeded to carry out the intention of the parties, and how it happened that the mistake was carried into the written contract. So regarded, the evidence was not incompetent. But, suppose it to be true, that his intention to comprehend “ the whole balance of the quarter ” in the contract was an immaterial fact ? The witness had already related what the parties had said, the instructions they had given. The evidence from which‘the court was to ascertain the intention of the parties, was before it. The witness super-added an immaterial part, but we do not see how this, under the circumstances, could have prejudiced the rights of the plaintiffs. “ In order to justify the reversal of a judgment on error, the record must affirmatively show, not only that error intervened, but that it was to the prejudice of the party seeking to take advantage of it.” Scovern v. The State, 6 Ohio St. Rep. 288.

So far, we discover no error in the proceedings of the court below. But another question remains. ■ On the facts stated in the defendants’ counterclaim, though found by the court to be true, were the court warranted in decreeing a reformation of the deed of the guardian of the minor plaintiffs to Beatty, and that their “ whole title and estate ” in the land in controversy, “be vested in said David Beatty his heirs and assigns?” The written contract of March 9, 1856, is made part of the defendants’ answer. In this contract the lands sold are described as follows : “ The following described premises situate in the county of Richland in the State of Ohio, and being one hundred and twenty-five acres off of the north side of the northwest quarter of section number thirty-four, of township number twenty-one, of range number eighteen.” The contract was executed, not by the minor plaintiffs, but by Jabez Cook as their guardian. This part of the contract was a covenant that he would institute proceedings in the probate court, to obtain an order of sale of bis wards’ interest in said land, and if Beatty became the purchaser, to make to him “ a deed pursuant to the order of court and the statutes of Ohio.” TI . defendants aver, in their counterclaim, that the same erroneous description of the land was carried into all the proceedings in the probate court, and into the guardian’s deed to Beatty. The premises, therefore, ordered to be sold by the probate court, and which were in fact afterward appraised, advertised and sold, did not embrace the land in controversy. As against the minor plaintiffs, is it material what were the intentions or understanding of their guardian, or what were his personal covenants? He could sell his wards’ land only through the order of the probate court. Whatever, his intention or understanding was, he could not go beyond the authority given him by the court. This power to sell was derived from the court, and was limited to the execution of its order. The land in controversy was not ordered to be sold, nor advertised for sale, nor in fact sold. Under such circumstances it could not be given, by the decree of another court, to Beatty. A court of equity may aid the defective execution of a power, but can not generally supply the want of power. Tiernan v. Beam and others, 2 Ohio Rep. 383; Mahon v. Reeve, 6 Blackford, 215.

This, also, may well be considered in reference to the rights of the minor plaintiffs. Who can say, that if more land had been offered, another bidder would not have appeared and given a greater price ? As to Beatty, he obtained by his deed all the land that he in fact bought. He may, indeed, have supposed he was purchasing more, but in such case the doctrine of caveat emptor is well applied.

We are of opinion, therefore, that the court below erred in reforming the guardian’s deed to Beatty, and in giving to the latter the interests of the minor plaintiffs in the land in controversy.

So much, therefore, of the decree of the district court, as directs the reformation of the guardian Jabez Cook’s deed to Beatty, and “ that the whole title, interest and estate ” of the minor plaintiffs in the land in controversy, “be vested in said David Beatty his heirs and assigns,” is reversed. The judgment and residue of said decree are affirmed.

Peck, C.J., and Brinkerhoee, Scott, and Rannet,JJ., concurred.  