
    Gray, Respondent, v. Hornbeck, Appellant.
    1. In a petition for a reformation of a deed, the petitioner in his petition claiming to have purchased the north-easi quarter of a quarter section, and that by mistake the deed recited the conveyance of the north-taesi quarter of the quarter section'of land, the case was not one for a jury — the fact of the case being undisputed in proof.
    2. That under the circumstances of the case the facts being evident, held, not to be very material whether the petition was to be regarded as one for a specific performance of a contract or for the reformation of a deed.
    
      
      Appeal from Greene Circuit Court.
    
    IAnderbouer, for appellant.
    Richardson, for respondent.
   Napton, Judge,

delivered tlie opinion of tlie court.

This is an action brought by Gray against one Cason to correct a mistake in a deed. The plaintiff alleges that he bought a tract of land of Cason, embracing among other parcels the north-east quarter of the south-west quarter of section thirty-six, township thirty, range twenty-two; that he paid for the land, and received a deed for the same, but by mistake the north-iuest quarter of the south-west quarter of the section above referred to was mentioned in the deed as the land conveyed, instead of the north-east quarter. The prayer of the petition was to have this mistake rectified by a decree of the title.

Hornbeck, who had attached the land as a creditor of Cason, was admitted to defend the suit, Cason being a nonresident and making default. His answer was a general denial. The case was tried by a jury, and the jury found for the plaintiff, and the court adjudged accordingly.

The case was not one for a jury, and if it had been, the instructions submitted the case to the jury upon a point not really in issue. It wa,s treated by the court as an action for a specific performance. But the testimony was very clear that Cason sold the land in question; that the forty acres named in the deed was still vacant land; that he owned the forty claimed, and had sold it and delivered the possession of it to Gray, and received the money for it. There was no evidence offered by the defendant. Under these circumstances, it is not very material whether the petition was regarded as one for a specific performance or for the reformation of a deed. In either event, the plaintiff was entitled to a judgment for a title, and the judgment of the circuit court is therefore affirmed.  