The bill prayed that the defendant might be enjoined from proceeding at law, and also that the mistake in the deed might be corrected. *Page 216
The 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 intended to be conveyed thereby, and no more.
Upon the coming in of the answer, the injunction was dissolved, with costs; but upon the motion of the plaintiffs, the bill was held over as an original, and replication to the answer was filed. Many depositions were taken, but it is not necessary to state them in detail, as the Court, on the hearing, were clearly satisfied that the plaintiffs had established every part of their case. It is altogether unnecessary to inquire, in this case, how far courts 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 relief in many such cases is that the plaintiff had a remedy at law. That reason is not applicable to executed contracts. In these cases the plaintiff has no remedy at law, and unless a court of equity will give relief, he can have no redress. 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 is omitted through fraud or mistake, equity will give relief. The authorities in support of this position are collected in Newland on Contracts, p. 346, and Sugden Vendors, p. 97. Gillespie v. Moon, 2 Johns. Ch., 585, is in point. There a deed was executed by mistake for 250 acres of land, when it ought to have been for 200 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 fact, beyond rational doubt, that the course of both tracts of land, instead of the one purchased of William (382) Amis, was through fraud, or to say the least of it, through mistake, 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 *Page 217 directions for him to return a plat and survey of it to the next term of this Court, unless, in the meantime, the parties agree upon the boundaries of the tract of land, which was intended to have been conveyed, viz., the land which Webb purchased of William Amis; and let the costs of this suit be paid by the defendant.
PER CURIAM. Decree accordingly.
Cited: Day v. Day, 84 N.C. 409; Anderson v. Rainey, 100 N.C. 335;Harding v. Long, 103 N.C. 7; Davis v. Ely, 104 N.C. 22; Morisey v.Swinson, ibid., 564; Warehouse Co. v. Ozment, 132 N.C. 847; Maxwell v.Bank, 175 N.C. 183.