This action is brought principally to reform a bond set out in the complaint, and made under the following circumstances: In May, 1838, Andrew Dunlap, of Ovid, in the county of Seneca, was the owner of 517 acres of land, situate in that town, which he desired to divide and distribute amongst his children, providing at the same time for the support and maintenance of himself and his wife, Mary, during life. He had four sons: Josiah, David, the defendant's testator, Andrew, Jr., and William; and one daughter, Jane Nevius, the plaintiffs' testatrix. He caused the land to be surveyed, and a diagram made of it. That part of it designed for his son William, consisting of one hundred acres, he conveyed to Andrew, Jr., who paid William the estimated value of it in money. On the 10th of May, 1838, he conveyed to Josiah one hundred acres, and to Andrew, Jr., one hundred acres, which included the homestead. To his son David he conveyed two hundred and seventeen acres. This included one hundred acres, the benefit of which was designed for Mrs. Nevius, as her share of his estate, and for which David was to pay her $3,000, the estimated value thereof at a future *Page 677 time. It was a part of the arrangement that Josiah, David and Andrew were to provide means for the support of their father and mother during life, and were to become legally bound therefor to the extent of the annual interest upon the four shares of the lands which had been conveyed to them, estimating each share at $3,000. As the contribution of the share of William, conveyed to Andrew, Jr., the latter was to execute to his father a lease for life of a part of the dwelling-house and premises, which was executed and delivered accordingly. David was to make his bond to his sister, Mrs. Nevius, conditioned to pay her $3,000, the estimated value of her share, upon demand, with a provision in respect to the payment of interest, and to which I shall presently refer, that being the subject of the controversy in this action. Josiah and Andrew, Jr., in fulfillment of the agreement, each executed to their father their separate bond, conditioned to pay $210 annually to him, or Mary his wife, during their lives; and David, in like manner, executed to his father a similar bond, conditioned to pay $420 annually during the same time. At the same time David executed and delivered to Mrs. Navius the bond in suit, which is in the penal sum of $3,000, conditioned to pay to her $3,000 on demand. It then recites that David Dunlap, the obligor, had become obligated to pay Andrew Dunlap and Mary his wife $210 yearly for their lives, being the amount of interest on this obligation, and then added: "It is, therefore, expressly understood by this condition that when the aforesaid obligation to Andrew Dunlap ceases to be obligatory, then the balance due on this obligation shall draw lawful interest, and not before. And it is further expressly understood that in proportion to the payments made on this obligation, the payments on the other shall be diminished, and be no longer obligatory." The provision quoted was obviously made to protect David against the double payment of interest upon the estimated value of Mrs. Nevius' share in the estate. Whenever his liability to pay interest to his father (which was the paramount obligation) should cease by death of the obligees or otherwise, then his liability to pay interest to Mrs. Nevius upon the bond to her should commence, and *Page 678 not sooner. The three bonds to the father were made to secure a fixed support for the father and mother. Their right to demand payment to the extent of the sums mentioned in the condition of each of the bonds was settled and fixed by the terms of the instruments themselves. The parents, however, agreed verbally to accept, and did accept, payment in support furnished from time to time, in such sums of money as they actually needed. Mrs. Nevius was not present at the transaction, but was at that time living in Steuben county. The bonds, including that to Mrs. Nevius, were kept by the father until the death of his wife, which occurred July 28, 1846. He then delivered the bond of Mrs. Nevius to her, and she delivered it to Josiah at his request. The other bonds were delivered over to David. Andrew Dunlap, Sen., died in March, 1851. The cost of the support of the father and mother did not amount to the sums secured to be paid upon the three bonds; and whatever it was, David paid and furnished one-half thereof, and Andrew and Josiah each one-quarter. During the period the father retained the bonds in his possession, the interest was indorsed upon them annually by the father's direction, which indorsements were made to show they were satisfied to the times of the indorsement by means of the support furnished. There were also indorsed upon the bond to Mrs. Nevius, during the same period, various payments, in all amounting to more than $2,000; and there are payments indorsed thereon subsequently in full of the sum due thereon, according to the terms of the condition as written in the bond. The plaintiffs demand judgment for $3,000, with the interest from the time of the commencement of the action, and, if necessary, that the bond to their testatrix be reformed so as to provide for the payment of interest to her thereon from the time of its date, deducting therefrom her just share of the actual costs of the support furnished the father and mother. The defendants answered, denying, amongst other things, that there was any agreement in regard to the payment of the interest, other or different from that expressed in the condition of the bond, and denying that there was any error or mistake in its form or structure. The cause *Page 679 was heard at the Special Term, without a jury, where a judgment was rendered that the bond be reformed according to the prayer of the complainant, and that the plaintiffs recover from the defendants $3,028.70, the sum due thereon for principal and interest as reformed by the judgment. The defendants appealed to the General Term, where the judgment was affirmed, and thereupon they appealed to this court.
I do not concur with the learned counsel for the defendant in thinking that Mrs. Nevius was not entitled to maintain an action for the reformation of the bond to her because she was not present at nor a party to the transaction at which it was given, and that no consideration whatever therefor moved from her, and because she derived it by gift from her father some eight years after it was given. Nor do I concur with the learned counsel for the plaintiffs when he claims that Mrs. Nevius is to be regarded as the owner of the land by gift from her father, who intended to give her the use of the land during his life and subject to her share of his support. These propositions are both of them artificial and unnatural, and not supported by the evidence in the case. The defendant's proposition would, if adopted, place Mrs. Nevius in the position of an assignee taking the bond by assignment from her father — a stranger to the contract out of which it arose. She would then have taken it with its infirmities and imperfections whatever they were, and could not have asserted any right of action founded upon the original transaction. She was the obligee, and not the assignee, of the bond. The one hundred acres of land was conveyed by the father to David upon the express consideration that he should give the two bonds referred to — one to his sister for the principal sum of $3,000, and the other to the father for the interest, while the principal by the arrangement was to remain unpaid. Although Mrs. Nevius was not present, and the consideration of the bond did not proceed from her, she was nevertheless a party to the contract. The consideration proceeded from a third person — her father — who acted for her benefit and in her name, and quoad the money mentioned or intended to be mentioned in the condition, the defendant's testator contracted *Page 680 with her. Had the condition, by mistake of the scrivener, expressed $2,000, in place of $3,000, the sum intended, there can hardly be a doubt that she would have been entitled to maintain her action to correct the error.
This brings us to consider whether the plaintiffs made such a case upon the proofs as entitled them to the relief demanded in the complaint. To entitle a party to the decree of a court of equity, reforming a written instrument, he must show, first, a plain mistake, clearly made out by satisfactory proofs. Whenever the evidence is loose, equivocal or contradictory, or is in its texture open to doubt or opposing presumptions, the relief will not be granted. (Story's Eq. Jur., 157.) This proposition is obvious, because the written instrument, carefully and deliberately prepared and executed, is evidence of the highest character, and will be presumed to express the intention of the parties to it, until the contrary appears by clear, positive and unequivocal evidence. In the second place, he must show that the material stipulation which he claims should be omitted or inserted in the instrument, was omitted or inserted contrary to the intention of both parties, and under a mutual mistake. (Id., 155.) It is not enough to show that he made a mistake himself; that, through inadver tence and error on his part, he executed an instrument, the stipulations of which do not express what he intended. He must also show that the other contracting party labored under a similar delusion. The rule is well expressed by Chief Justice SPENCER, in delivering the opinion of the Court of Errors in Lyman v. The Utica Insurance Co. (17 Johns., 373): "It is not enough in cases of this kind to show the sense and intention of one of the parties to the contract. It must be shown incontrovertibly that the sense and intention of the other party concurred in it; in other words, it must be proved that they both understood the contract as it is alleged it ought to have been, and in fact it was, but for the mistake. It would be the height of injustice to alter a contract on the ground of mistake, when the mistake arises from misconception of one of the parties in consequence of his imperfect explanation of his intentions. If it be clearly shown that *Page 681 the intention of one of the parties is mistaken and misrepresented by the written contract, that cannot avail unless it be further shown the other party agreed to it in the same way, and that the intention of both of them was by mistake misrepresented by the written contract." The proof upon the trial of this action fulfilled neither of these requisites. It was vague, uncertain and equivocal at best. It consisted of the inferences and conclusions of the two witnesses present at the time of the transaction, or at a part of the time of the transaction, and not of what was said and done by the parties or actors in it. Andrew Dunlap, one of the witnesses called by the plaintiffs to make out the mistake, said: "I was present a portion of the time when the bonds were drawn. They were to be paid by maintenance. At the time the bonds were made, the deeds for the land were given. David had a deed for 217 acres, Josiah for 100 acres, and Jane for 100 acres. He gave David a deed for my sister's right of 100 acres, for which there was a separate bond given besides the bond for maintenance, that was given to my sister, the plaintiff. The interest on the $3,000 was to be paid to her, except what would pay for her share of the maintenance. There was a lease executed at the same time from me to my father." This is all, positively all that this witness says as to the omitted portion of the agreement. "The interest on the $3,000 was to be paid to her," he says. He does not say his father said the interest was to be paid to her, or that David or anybody else said the interest was to be paid to her. I think therefore it was a mere inference of his own, a conclusion of his own mind as to what would result from the arrangement, and not from any agreement or stipulation which David and his father made at the time. This certainly is not the kind of evidence referred to by the judges and elementary writers as requisite to overthrow the express words of a written instrument, and substitute other words in their place. The written language of the bond speaks in plain, clear and unequivocal terms; the parol language claimed to be substituted, to be of any effect, should be equally plain, clear and unequivocal. Josiah Dunlap, the other brother present, and who prepared *Page 682 the papers, was also examined as a witness for the plaintiffs to show the mistake. He said, "I know it was my father's design to let my sister, Mrs. Nevius, have the whole benefit of the 100 acres referred to. He told me that he designed to give her the 100 acres, and instead of her selling it he sold it to my brother David." He was then asked the following question: "When you drew the bond, was it your intention to draw it so as to require David to pay the $3,000 and interest to Jane Nevius, after deducting her share of what was necessary for her father and mother's support?" The question was objected to and the objection overruled, and the witness answered, "That was my intention, it being my father's intention; these bonds were all executed at the same time." This is all the witness says upon the principal question. If the question put and answered can be deemed evidence, which I very much doubt, it does not by any means establish an agreement different from that expressed in the contract. When the witness speaks of his own intention, and the intention of his father, he does not intend to speak of what was said and done at the time, but of the legal consequences and logical conclusions which would result from what was done. If David or his father said or did anything during the negotiation indicating a different purpose from that expressed in the bonds, the plaintiffs were bound to prove what it was, and then it would become the province of the court or jury to determine the inferences and conclusions consequent thereon. The instrument cannot upon any known rule be reformed upon evidence which falls short of this. So far however from showing that anything of the kind was said, the witness, Josiah Dunlap, testified that "not one word was said about what was to be done or what the consequence would be in case it cost less than the $210, each share, for the support of my parents." The effect of this testimony was to neutralize all that the witness said in regard to the alleged mistake. It is worthy of observation that there is not one particle of proof showing or tending to show that David Dunlap, the obligor, entertained or expressed a different intention from that expressed in the bond. Concede it to be true that it does *Page 683 not express the intention of his father, and what then? The mistake must have been mutual, and until it be shown that both parties were mistaken, there can be no relief in the form of reformation. David Dunlap was the purchaser of the 100 acres represented by the bond to Mrs. Nevius. It was not a gift to him, as the other 117 acres were. He paid the consideration money in the two bonds referred to, securing the interest to his father and mother during life, and the principal to Mrs. Nevius, with the interest to her whenever his obligation to pay the interest to his father ceased. The action of the father and son during the eight years that the former retained the possession and control of the bonds, is strong confirmation that this was the arrangement actually contemplated. From year to year during that period the father accepted from David less than the interest reserved, but canceled and discharged it by an indorsement upon the back of the bond. If the difference between the amount actually received, and the sum actually reserved, was, by the original arrangement, to be paid to Mrs. Nevius, why was nothing said about it? Why was it suffered to accumulate without claim or intimation of mistake until after the father's death? It is quite natural that a person will claim to enjoy what is really their own, and the father's acquiescence, and Mrs. Nevius' silence for so great a length of time, was proof quite sufficient to overcome all that was produced on the part of the plaintiffs upon the trial. It was justly and appropriately said in the court below, that "the bonds were prepared in their original form with the purpose to put the father's independence beyond a doubt." At any time during his life he could have exacted the interest in full, and could have disposed of it as he chose. Had he exacted it, would it be pretended that the bond in suit could now be reformed as directed by the court below, on showing that no such amount as the interest was requisite to his support? Being at his option to exact the whole interest or not, his omission to do so adds nothing to the plaintiffs' rights. If anything remains unpaid on the bond to Andrew Dunlap, Sen., it belongs to his estate, and not to the plaintiffs. *Page 684
The judgments in the courts below should be reversed, and a new trial granted, with costs to abide the event.