The question for us to determine is whether or not the court erred in setting aside the report of the special master, and in rendering judgment in accordance with the prayer of the cross-complaint. This report was more than advisory to the court. It will be observed that the special master by consent was directed "to hear the evidence and decide on the issues between the parties and make his report to the court, stating his finding, both of fact and of law." Such a reference gives to the finding of fact in this case the same conclusiveness as the verdict of a jury, or the finding of fact by the court sitting as a jury. Greenhaw et al. v. Combs, 74 Ark. 336, 85 S.W. 768.
This reference is almost identical with that in the case ofKimberly v. Arms, 129 U.S. 512, 9 Sup. Ct. 355, 32 L.Ed. 764, where the court said:
"By the consent in the case at bar it was intended that the master should exercise power beyond that of a reporter of the testimony. If there had been such a limitation of his authority, there would have been no purpose in adding to his power 'to hear the evidence,' the power to 'decide all the issues between the parties and make his report to the court, separately stating his findings of law and of fact' together with the evidence. * * * We are therefore constrained to hold that the learned court below failed to give to the findings of the master the weight to which they were entitled, and that they should have been treated as so far correct and binding as not to be disturbed, unless clearly in *Page 868 conflict with the weight of the evidence upon which they were made."
In Davis v. Schwartz, 155 U.S. 631, 15 Sup. Ct. 237, 39 L.Ed. 289, the court, in speaking of a report under a similar reference, said: "* * * But so far as it depends upon conflicting testimony, or upon the credibility of witnesses, or so far as there is any testimony consistent with the finding, it must be treated as unassailable" — citing authority.
The Supreme Court of Arkansas, under whose chancery practice this case was tried, it having originated and been tried in the Indian Territory prior to the adoption of the Constitution, in speaking of the weight and effect to be given to the report of a special master under a consent reference, as in this case, inGreenhaw v. Combs, 74 Ark. 336, 85 S.W. 769, after adopting the rule as laid down by the Supreme Court in the preceding case, said: "Where there is any testimony legally sufficient to support such findings, they will not be set aside." The United States Court of Appeals for the Indian Territory laid down the rule in Rainwater, Bradford Hat Co. et al. v. McBride et al., 3 Ind. T. 621, 64 S.W. 556, in the syllabus to that case, in effect, that such a master's report is to be regarded on appeal as the finding of a properly instructed jury.
Guided by these principles, we find, after a careful examination of the testimony, there was practically no conflict therein, and that the findings of fact by the referee are amply supported by the evidence. It then remains for us to determine whether the judgment of the lower court was proper upon those findings.
The findings disclose, in short, that on August 14, 1903, defendant, Frances Bourland, entered into a written contract with plaintiff and his associates, agreeing that for $4,250 she would, at such time as the approval of the Secretary of the Interior could be procured, convey to plaintiff 150 acres of her own allotment, and 50 acres allotted to her minor son (describing both tracts), except that out of the land allotted to her there was to be reserved to her, without reduction of the purchase price, 3 *Page 869 acres to be selected by her, upon which was situated her dwelling house and other improvements. In the meantime, and before the approval of the Secretary of the Interior was invoked, plaintiff and his associates laid off this land into lots and blocks, and platted the same, showing the 3 acres to be reserved to her, designated the same the "Bourland Reservation," and sold off the major portion of the lots. Doubt having arisen in the minds of these parties as to their ability to secure approval of the Secretary of the Interior for her to alienate the 50 acres belonging to her minor son, a second contract in writing was made, and entered into between the parties on the 17th day of September, 1904, more than a year after the first agreement. The second agreement, in substance, provided that she would make application to the Secretary of the Interior to alienate her said lands and use her best efforts to procure his approval to sell the land of her minor son, but that, in the event said effort was unsuccessful, then Hope and his associates agreed to pay her, as soon as she conveyed to them by warranty deed certain lands set forth in the contract, which was a portion of her allotment mentioned in the first agreement embracing the "Bourland Reservation," the sum of $950, in addition to the sum of $3,300, which she had theretofore agreed to accept from them for the same land. No reservation or exception of any kind was made in this last agreement, and so far as the testimony discloses, nothing was said about her three-acre tract upon which she resided at the time of making the second agreement, and upon which she continued to reside until a short time before the commencement of this suit. About a month after making this second agreement the Secretary of the Interior granted her the required permission to alienate the land described in the second agreement belonging to her for said town-site purposes, but provided in his order that the same should not be sold for a sum less than $50 per acre. In application for this permission, she described the land exactly as set forth in this second contract, and shortly after receiving it went to Muskogee, where the deed sought to be reformed was prepared for her signature. *Page 870 It was read to her in the office of the attorney who prepared it, and read and examined by her codefendant, Little, who was then her agent, and whom she afterwards married. It was taken to the office of the Commission to the Five Civilized Tribes, where it was again read to her by the chairman of the commission, who explained its contents to her, and then and there received $6,744.50, the purchase price of the land, but in that deed no reservation of the three-acre tract was made, and nothing said about it.
Plaintiff intended that it should, and the deed did, contain a description of all the land for which he had contracted in the second agreement, and the report discloses that it "is not clear by any means that it was the intention of the defendant, Mrs. Bourland, at the time of the execution of the deed, to have reserved to her and excepted from said conveyance, the three-acre tract known as the 'Bourland Reservation,' " but "* * * that it was her intention to convey, and the intention of the grantees in said deed to receive and pay for, all the lands described in said deed, and in the order of the Secretary of the Interior authorizing her to alienate the same." The report states that "no misrepresentations were made at the time of the execution of the deed in question to induce her to sign it, and if there was a mistake made in the drafting of the instrument, it was a unilateral mistake, and not the result of any fraud upon the part of the plaintiff." This is clearly not a case wherein the facts found justify the court in ordering a reformation of the deed. No fraud is found. No mutual mistake existed under which the parties conveyed something not intended. No mistake appears to have been made on the part of the plaintiff. He bought the land covered by the agreement, and it is not clear that any was made on the part of Frances Bourland, in that it does not clearly appear that she intended to have reserved to her the three acres at the time she signed the deed. The report says: "If there was a mistake made in the drafting of the instrument, it was unilateral," etc. Relief cannot be granted under the cross-complaint in such circumstances. *Page 871
Conceding a unilateral mistake on the part of Frances Bourland, and that she did not intend to convey this land without a reservation of her three acres, which the finding of facts certainly does not show, there can be no rescissions of this deed, for the reason that plaintiffs cannot be placed instatu quo, they having, according to the finding of facts, already cut the property into lots and sold the major portion of it, and besides there is no offer in her cross-complaint to place them in statu quo. Neither is she entitled to a reformation of the deed. It is well settled that to warrant reformation, in the absence of fraud or imposition, there must be a mutual mistake — that is, a mistake shared by both parties — that to justify the reformation of a deed delivered, accepted, and acted upon, on the ground that it did not correctly express the agreement made by the parties, the proof must be clear and convincing; and, until a mistake has been established by such proof as leaves no rational doubt of the fact, no change will be made in the writing sought to be reformed. Green v. Stone, 54 N.J. Eq. 387, 34 A. 1099, 55 Am. St. Rep. 577.
Bishop on Contracts, §§ 707, 708, states the rule thus:
"The mistake must, in general, be mutual, and it must be clearly established by the proofs, which may be either oral or written. Indeed in no case will a court decree an alteration in the terms of a duly executed written contract, unless the proofs are full, clear, and decisive. Mere preponderance of evidence is not enough, and the mistake must appear beyond reasonable controversy."
See, also, Royer Wheel Co. v. Miller, 50 S.W. (Ky.) 62;Mikiska et al. v. Mikiska et al., 90 Minn. 258, 95 N.W. 910;Chapman v. Dunwell, 115 Iowa, 533, 88 N.W. 1067.
In Hearne v. Marine Insurance Company, 20 Wall. 488, 22 L.Ed. 395, the Supreme Court of the United States, speaking through Mr. Justice Swayne, lays down the rule as follows:
"The reformation of written contracts for fraud or mistake is an ordinary head of equity jurisdiction. The rules which govern the exercise of this power are founded in good sense, and *Page 872 are well settled. Where the agreement as reduced to writing omits or contains terms or stipulations contrary to the common intention of the parties, the instrument will be corrected so as to make it conform to their real intent. The parties will be placed as they would have stood, if the mistake had not occurred. Kerr on Fraud Mistake, 419, 420. The party alleging the mistake must show exactly in what it consists, and the correction that should be made. The evidence must be such as to leave no reasonable doubt upon the mind of the court as to either of these points. Beaumont v. Bramley, 1 Turner Russell, 41-50. Marquis of Breadalbane v. Marquis of Chandos, 2 Mylne Craig, 711; Fowler v. Fowler, 4 De Gex Jones, 255;Sells v. Sells, 1 Drewry Smales, 42; Loyd v. Cocker, 19 Beavan, 144. The mistake must be mutual and common to both parties to the instrument. It must appear that both have done what neither intended. Rooke v. Lord Kinsington, 2 Kay Johnson, 753; Eaton v. Bennett, 34 Beavan, 196. A mistake on one side may be a ground for rescinding, but not for reforming, a contract. Mortimer v. Shortall, 2 Drury Warren, 372; Sellsv. Sells, supra. Where the minds of the parties have not met, there is no contract, and hence none to be rectified" — citing authorities.
In United States v. Monroe, 5 Mason, 572, Fed. Cas. No. 15,835, Mr. Justice Story, speaking for the court, said:
"In cases of asserted mistake in written instruments it is not denied that a court of equity has authority to reform the instrument. But such a court is very slow in exerting such an authority, and it requires the strongest and clearest evidence to establish the mistake. It is not sufficient, that there may be some reason to presume a mistake. The evidence must be clear, unequivocal, and decisive."
As fraud has been eliminated from this case by the facts found, and from our mind after close scrutiny of the testimony, and as those findings present only a case of unilateral mistake, if any, we cannot see how it is possible to sustain the finding of the lower court. That court, in its opinion filed with this transcript, found that there was a mistake, that the minds of these parties had not met in a sale of this three acres, and for that *Page 873 reason ordered the deed reformed so as to exclude the same therefrom, and divested title thereto out of Tom Hope and his associates. parties and privies, and reinvested it in Frances Bourland. In this, we cannot concur; and, inasmuch as it does not clearly appear that a mistake of any kind was made, much less a mistake common to both parties, and that the deed as executed expressed the contract as understood by neither, we are of the opinion that the court erred in its action as stated, and in dissolving the injunction, and in awarding damages against plaintiff and his sureties on the injunction bond, and for that reason, the case should be reversed and remanded, with instructions to enter judgment in accordance with this opinion.
All the Justices concur.