This is a bill in equity, brought under the au« thority of the late statute extending the equity jurisdiction of this court to all cases of mistake and accident, to reform and correct certain deeds set forth in the pleadings. It comes here upon the report of one of the judges of this court, from which the facts fully appear.
It appears perfectly well proved, if it is competent to prove it for such purpose by paroi evidence, and we think it is, that the oral contract was, that the grantor was to convey, and the grantees to take, two thirds of the entire premises of which the intestate died seised, and to except the entire third part of the premises in which the widow particularly had dower, though it had not been assigned to her to hold in severalty; that it was so understood by the conveyancer employed to draw the deeds; that he intended so to draw it, and supposed that he did. But it further appears from his testimony, that he used the words which he intended, but believed the description was such as not to include the reversion in the dower.
It also appears that the defendant, when he obtained his title from his grantor, knew that the grantor claimed the two thirds only, exclusive of the reversion in the dower, and that he considered that to be the extent of his title, and at times made proposals for the purchase of the reversion of some of the heirs, until within a year or two, since which he has denied their right, and refused to correct the mistake.
1. The first question is, whether here was any mistake. Of this we think there can be no doubt, if the intention of the parties was, that this reversion should not pass- The conveyance was of the interests of the heirs in 0the estate described, except the widow’s right of dower. This carried the whole estate subject to the exception. The widow’s right of dower was a freehold estate for her own life in one third, and the residue included both the two thirds in possession, and the reversion in the dower. Such was the legal effect of the description adopted.
2. We are therefore satisfied by the evidence that these deeds were made by the mistake of the scrivener, in preparing deeds which excepted only the widow’s right of dower, when, under *377the authority given him, and to accomplish his own intention, he should have so drawn the deeds as to except one certain undivided third part of the premises, being that part assigned, or reserved to be assigned to the widow, as her dower.
3. We are aware that a deed is very strong evidence of the intent of the parties, and at law cannot be questioned, but must be taken to be conclusive. But where, in equity, mistake of the parties is expressly charged and put in issue, equity will permit it to be inquired into, and, upon strong and satisfactory proof, to be corrected. The evidence must make it clear. Here we are of opinion that it is proved by such evidence, that the mistake was made and that the deeds did not conform to the oral contract, which they were intended to carry into effect. It is no answer to say that the scrivener used the words which he intended to use. It is the mistake of the parties to the deeds which we are to inquire into; and if they were misled by a misplaced confidence in the skill of the scrivener, it can hardly be said to be a mistake of law and not of fact on their part.
But we are of opinion that courts of equity in such cases are not limited to affording relief only in case of mistake of fact; and that a mistake in the legal effect of a description in a deed, or in the use of technical language, may be relieved against, upon proper proof. Hunt v. Rousmaniere, 1 Pet. 1. Gillespie v. Moon, 2 Johns. Ch. 596. Stedwell v. Anderson, 21 Conn. 139. Oliver v. Mutual Commercial Marine Ins. Co. 2 Curt. C. C. 299.
There are authorities also, especially the opinion of Chancellor Kent in Johnson’s Chancery Cases, that such proof may be made by paroi evidence. Gillespie v. Moon, just cited. Adams on Eq. (Amer. ed.) 168 note.
4. The court are of opinion that the defendant be required to execute and deliver to the plaintiffs, their heirs and assigns, a deed of release and quitclaim of all his right, title and interest in the reversion of one undivided third part of the estate, and that he and all persons claiming by, through or under him, be enjoined and prohibited from taking or claiming any right, title or interest in such reversion, against the plaintiffs or any persons claiming by, through or under them. Decree accordingly