(After stating the facts.)
1. The credibility of the evidence for the plaintiff was a question for the jury. Their verdict shows that they accepted it as true; and in the light of that evidence, the plaintiff was clearly entitled to the relief sought. The contention that even if the plaintiff’s evidence presented the truth of the case, he was necessarily remitted to an action for deceit, and that, inasmuch as there was a mistake upon the part of the plaintiff and not upon the part of the defendant, the suit for a reformation of the deed could not be maintained, is not supported by the established doctrine upon the subject of reformation of instruments like the one in question, under .rulings of this court, and as made in other States. In the case of Wyche v. Green, 26 Ga. 415, it was held that "The court’s charge that a mistake, to be the subject of correction, must be a mistake in which all the parties to the contract participate, .was too absolute. If one of the parties to a contract is mistaken in a matter, and the others know that he is and do not apprise him of it, yet the mistake, though not one on ■their part, is the subject of correction. The case becomes one in which there is a mistake in one of the parties to the contract and a fraud in the others. Such a case is even more readily the subject of relief, at his instance, than is a case in which there is nothing but a mistake, although that be a mistake extending to all the parties.” This doctrine was restated in the case of Shelton v. Ellis, 70 Ga. 297, where the court, speaking through Mr. Justice Hall, said, "There is nothing that we are aware of, either in the dode or any subsequent decision of this court, modifying the law as here declared.- On the other hand, we think there is much confirming the view here taken. Compare with this Code, §§ 3117, 3118 to 3126, both inclusive, and 3180. The condition upon which relief will be granted or denied must, under the sections of the code and the cases cited under them, depend in large measure upon the circumstances of each particular case, and upon all the *540facts developed, which, should be passed upon by the jury at the final hearing, and ought not to be too closely scrutinized or evenly balanced in these preliminary proceedings." ' See also 4 Pomeroy’s Equity Jurisprudence, §1376, and cases there cited.
The argument of counsel for plaintiff; in error, that this was an attempt by the petitioner to take advantage of a fraud practiced, not upon him, but upon another under whom he claims, is not sustained by the facts of the record. While it is true that, by the substitution of the number 425 for the true number 483, fraud was first practiced in the execution of the deed from Venable to Moore, there was a repetition of that fraud when Venable procured petitioner to take up and pay off his debt to Moore, and to take a deed from Moore’s administrator to himself. And the effect of the fraud, originally perpetrated against Moore, was, by a repetition of the fraud upon the part of the defendant and the mistake' upon the part of Burton, brought to bear directly upon Burton.
2. Nor was Burton cut off from his right to the remedies sought, by laches. He proceeded promptly to enforce his right to the remedy upon the discovery of the fraud which had been practiced. There was nothing in the facts of the ease which required the jury to find, or the court to hold, that petitioner was put upon inquiry as to the existence of the fraud. The status of the parties relatively to the land in controversy had remained the same. There is ño question here of the intervening rights of third parties or innocent purchasers. Venable had been indulged for many years in the matter of paying a debt, the validity of which he does not deny. Nor was there anything in the mere delay upon which to base either a hope or belief that his fraudulent action in substituting the wrong number in the deed would not be attacked when the fraud was discovered. A plainer case requiring a court of equity to exercise its power of reforming a paper could scarcely be imagined than this which we have before us. Stockbridge v. Hudson, 107 Mass. 290; Hutson v. Fumas, 31 Iowa, 154; Sable v. Maloney, 48 Wis. 331; 18 Am. & Eng. Enc. Law (2d ed.), 100.
3. But although petitioner was plainly entitled to have the instrument in question reformed, and was then entitled either to recover in ejectment, or to obtain a judgment for the amount of his debt and have it declared a special lien upon the land, he was *541not entitled to proceed both, for a recovery of the land and to have his debt reduced to judgment and made a special lien. The defect in his proceedings is that apparently he sued to enforce both rights, inconsistent as they are, in the same action. The defendant’s special demurrer, pointing out this defect, put the plaintiff to his election, and the court should have so ruled, and compelled petitioner to abandon either so much of his suit as sought the recovery 'of the land, or' that portion of the proceeding wherein the recovery of a judgment for the -amount of his debt was sought. The failure of the court to do this was error; and for this reason the judgment is
Reversed.
All the Justices concur, except Holden, J., who did not preside.