
    Richard Newsom & Mary his wife, et al. v. William Bufferlow,
    
      From Northompson.
    
    vje.ty yelfeveis ¡«T!t-í! isiriakos, r.-¡ well as agaimt fraud m .. dc-.ü U1' «'jr.tr.-iot in «'iling ; and pvnl cvMenso is ;.Jrn iss'ble to the w: fnioi, thouph it is denied in the answer ; ami this, when tl«o ísíiii;iiiff-x'oíes ' % .iiii,-msti?ely o’i the ground of ¡.’.istarc-.
    As where tlie owner oí tvro adjoiníiiij iiv.eis of hind, Iinniig .sold oat-oi'theuij in d- íerionig the ii'etes ami bounds in a deed executed to the purcli;-. .or, by mistake included ooth tracts. Tae proof oí the; tnisiake be,in|r ¡./.i'.' .-s’y satisfaclcry, the miik-e was dea.’e.eu to re-convey «o the .’eu-ior the tract offend not intended to be can . eyed.
    The FLiititifld hi their bill alleged, that Jesss IFtbh-, ilia first husband of the ¿*hdsU& - Wer*, and feu f*$m 
      of others of the Plaintiffs, being the owner of one trac* of land, purchased an adjoining tract of one fVilliaia Amis, and to secure the purchase money, conveyed both tracts to one John D. Amis, in trust, in the usual form 5 that afterwards, with the consent of the trustee, he sold the land purchased of Amis, to the Defendant — but that when he executed a deed for the land so sold, through mistake or fraud, the courses of the deed of trust executed by Webb to John D. Amis, were copied, instead of those of the deed from William Amis to Webb, and thus that all the land which he, Webb, owned, was conveyed by that deed. The death of Webb — the intermarriage of the Plaintiff,. Newsom, and Mary, and the descent from Webb to the other Plaintiffs, were then alleged — and also the fact that the Plaintiff, claiming both tracts, had brought an ejectment (1 Law Cases 208) against the Plaintiff, Newsom, who was in possession under an as-signrhent of dower to his wife, and was pressing the same to a trial.
    The bill prayed, that the Defendant might be enjoined from proceeding at law — and also that the mistake iu the deed might he corrected.
    Th<* Defendant, in his answer, positively affirmed? that the deed executed to him by Jesse Webb, in his lifetime, was in exact accordance with the understanding and design of the parties thereto, and that it conveyed all that was inteuded to be conveyed thereby, and no more.
    Upon the coming in of the answer, the injunction was " dissolved with costs. Bui upon the motion of the Plaintiffs, the bill was held over as an original, and a replication to the answer was filed. Many depositions were taken ; but it is not necessary to state them in detail, as the Court, 01s the hearing, were clearly satisfied that the Plaintiffs had established every part of their casgt
    
      
      Smwell, for «he Plaintiffs,
    cited Heiikls v. ?loyal Ex. JlS'i. €.!. (I Fes. sen Ss9) Toicnskendv. íVrangrooiii (p Ves 3.03) Haker v. Fayne (i Fes. sm. 45o) Simpson v. Vaughan (2.Vk. 32) Barn v. Burn (3 Fes 573) G-illes-•aie v. Jíoon (2 Joints. G. ll. 585) Pitearme v. Ogbturne (2 Fes. 377).
    
    
      Madger, for the Defendant,
    referred tu 3licit v. Jack* son (■! Brown C. G. 514) Wooüaun v. Hearn (7 Fes. 311),
   Hall, Judge.

— It is altogether unnecessary to en quire. in this case, bow far Conns of Equity have gone, in carrying into effect written executory contracts, or varying them by parol evidence. Suffice it to say, that the reason why they have declined giving r'di-f in many aueli cases is, that the Plaintiff had a remedy at law. That reason is not applicable to executed contracts. la these cases, the Plaintiff'has no remedy at law 5 and unless a Court of Equity will give relitf, he can have no mb ess. For this reason, it is well settled, that a Court of Equity will reform a written executed contract like the present. And generally, where a clause is either inserted in a deed, or id omitted, through fraud or mistake, Equity will give relief. The authorities in support of Unu position, are collected in Newland on Contracts^ p. 346, and Sugden’s Law of Vendors, p. 97.— The case of Gillespie & wife v. Moon (2 Johns. Ch 585) Is in point. There a deed was executed by mistake for two hundred and fiiiy acres of laud, wlvri it ought to have been for two hundred only. Parol evidence was let in to prove the mistake, although it was denied by the answer.. Upon the same subject, see Souverbye v. Arden (1 Johns. Ch. 240, 252) Getman v. Beardsly (2 John. Ch 275) and Lyman v. United Ins. Co. (Do. 630).

His Honor then recapitulated the facts of the case; and proceeded

Without recapitulating the testimony offered by the Plaintiffs in this case, it may be assumed as a iactr beyond rational doubt, that the courses of both tpacfs (lf jan(j9 instead of the one purchased of William .ñrnis, were, through fraud, or to say the least of it, thrmigh-mistuke, inserted in the deed to Bufferlow. It is to be regretted, that the courses of the other tract of land have not been set forth in the bill, or otherwise made to appear to the Court. A reconveyance of that land, to be made by the Defendant, cannot be, for that reason, decreed at this time. To ascertain them, let a commission issue to the County Surveyor, to make a survey of that land, and ascertain the boundaries, with directions for him to return a plot and survey of ir to the nest term of this Court.; unless in the mean time, the parties agree upon the boundaries of the tract of land, which was intended to have been conveyed, viz. the laud which Webb purchased of William Amis i and let tht costs of tiiis suit be paid by the Defendant.

Per Curiam.

— Decree accordingly.  