The testimony tends strongly to show, that when the sale and conveyance of the disputed twenty-three acres of land were made to Garland Wood, or to him and his father, McClendon, the appellee, was in possession, claiming said land under his prior purchase. This constituted an adverse holding by him, which would render the conveyance to Garland Wood inoperative and void, as against him, McClendon ; and would have furnished him a defense to an action at law brought by Garland Wood for the recovery of said lands. — Hinton v. Nelms, 13 Ala. 223; Abercrombie v. Baldwin, 15 Ala. 371; Carlos v. Ansley, 8 Ala. 902; Doe, ex dem Farmer v. Eslava, 11 Ala. 1044; 3 Wash. Real Property, 292, et seq.; Abernathy v. Boazman, 24 Ala. 192 ; Harvey v. Carlisle, 23 Ala. 638. It is thus shown that McClendon could have successfully defended an action brought by Garland Wood for the recovery of the said twenty-three acres. Was he bound to make the defense ? Would such defense, if successfully made, have secured to him the full measure of his rights?
It is settled in this State, that if a vendor, in making sale of lands, either ignorantly, or by design, represent that the tract he is selling includes other more valuable lands, outside of the boundaries of the tract he sells, the defendant may have an abatement of the purchase-money, to the ex*333tent he is injured by the misrepresentation; and this defense he can make at law.— Gibson v. Marquis, 29 Ala. 668; Munroe v. Pritchett, 16 Ala. 786; Atwood v. Wright, 29 Ala. 346; Blackman v. Johnson, 35 Ala. 256; Allen v. Kelly, 34 Ala. 669, and authorities. This defense McClendon could have made, even if no sale of the north-west quarter had been made to Garland Wood, unless the peculiar facts of this case take it without the operation of the rule. The land described in the conveyance to McClendon, and the twenty-three acres pointed out as embraced within it, were alike the property of Wiley Wood, Charles F. Wood, and Wm. M. Wood. Wiley Wood alone designated the boundaries, and negotiated the sale. A title to said west half of the north-east quarter was conveyed to McClendon, and no other land was conveyed to him. An action at law could have been successfully prosecuted by the three Woods, against McClendon, for the recovery of said twenty-three acres; and to such suit, their deed made to Garland Wood would have opposed no bar. This precise question was so ruled in Harvey v. Carlisle, 23 Ala. 638. It results, therefore, that McClendon, by his purchase, acquired no title to the twenty-three acres.
If it be contended that, under the facts of this case, Mc-Clendon acquired an equity, by which he could have compelled a reformation of his deed, so as to make it embrace the lands pointed out by Wiley Wood, the answer is, first, that it is not shown by this record that the reformation would have been made. Chancery reforms contracts, so as to make them speak the mutual agreement of the parties, when the writing, by mistake, or fraud, fails to express such mutual agreement. It does not make contracts. When Wiley Wood was negotiating the sale to McClendon, he pointed out the twenty-three acres, as part and parcel of the west half of the north-east quarter of the section. He sold and conveyed only the west half of the north-east quarter. His mistake lay in his supposition, that the tract sold and conveyed embraced the twenty-three acres. To give to Mc-Clendon the eighty acres pointed out to him, it will be necessary to so shape it as to include fifty-seven acres of the west half of the north-east quarter, and twenty-three acres of the north-west quarter. This will leave detached, undisposed of, and the property of the Woods, twenty-three acres on the east side of the west half of the north-east quarter. The sale actually agreed on, and consummated by writing, was by numbers. Charles and William Wood, when they executed the deed, conveyed a specified eighty-acre tract — the west half of the north-east quarter. They did not convey the twenty-three acres. We are not informed by the record, and *334cannot presume, that they authorized Wiley Wood to make the misrepresentation he did make. Now, while such misrepresentation, made by an agent to sell, would arm a purchaser with the right to set off, recoup, and, in many cases, with the right to rescind, it could not confer a right, as against Charles and William Wood, to have the contract so reformed as to embrace the twenty-three acres, unless they authorized or ratified such misrepresentation. As to them, the writing is the contract; and we have no evidence that they had any intention, other than that shown in the writing.— Falls v. Gaither, 9 Porter, 602; Sanford v. Howard, 29 Ala. 684; Haden v. Tucker, 38 Ala. 399.
In what we have said, we must not be understood as affirming that chancery would have reformed this contract, even if Wiley Wood had been sole vendor. We can not well perceive how a chancellor, from the evidence in this record, could infer that Wiley Wood intended to mutilate the tract of land, then owned by him and others, so as to give to Mc-Clendon the specific land pointed out. His intention, as far as we can gather it, was to sell the west half of the northeast quarter of the section. He believed it embraced the twenty-three acres, and he intended to sell said twenty-three acres as part of the named eighty. We have nothing from which to infer that he intended to sell and convey fifty-seven acres of one eighty, and twenty-three acres of an adjoining tract; thus cutting the remaining tract into irregular parcels, and leaving detached and undisposed of a fragment of twenty-three acres on the east side thereof.— See Rumbly v. Stainton, 24 Ala. 712; Lockhart v. Cameron, 29 Ala. 355.
In 1 Story’s Eq. Jur. §§ 142-3, it is said: “In cases of mutual mistake, going to the essence of the contract, it is by no means necessary that there should be any presumption of fraud. On the contrary, equity will often relieve, however innocent the party may be. ':f * So, if a person should execute a release to another party, upon the supposition, founded in a mistake, that a certain debt or annuity had been discharged; although parties were innocent, the release would be set aside, on the ground of mistake. * * The same principle will apply to all other cases, where the parties mutually bargain for and upon the supposition of an existing right.”
The testimony in this record tends strongly to show that the parties, when they contracted, believed the lands pointed out constituted the -west' half of the north-east quarter of the section. That such was their belief is rendered morally certain by the fact, that when they came to make the deed, they so described it. It is clear that, when Wiley Wood pointed *335out the east (north-east?) corner of the land, he fell into an error. That was not the north-east corner. The true corner, according to the testimony of the surveyor, must have been about one hundred and twenty-seven yards east of that place. This, then, under the most favorable view which can be taken of the testimony' — and we think it the true one— presents a clear case of mutual mistake. We do not decide, however, that if Wiley Wood alone had been interested in the sale, the deed would not have been reformed. Such decision is not necessary in this case. All we decide is, that from any thing shown in this record, the deed could not be reformed against Charles F. and William M. Wood.
But, even supposing that McClendon could have had the deed reformed, so as to secure to him the lands pointed out, it is by no meams certain that he was required to incur the heavy expense involved in a chancery suit, to secure that which he had bargained for, and which he had failed to obtain by no fault of his. — See Walton v. Bonham, 24 Ala. 514.
The survey of the land in controversy, proven by the surveyor, does not appear to have been made according to section 953 of the Bevised Code. No notice seems to have been given to McClendon, the “opposite party,” that such survey would be made. Now, while the witness could testify of such survey, and, based thereon, could give his opinion of the boundaries; and could exhibit to the jury a map or diagram, explanatory of the testimony given by him, still such testimony does not rise to the dignity of prima fade proof. — See Nolin v. Parmer, 21 Ala. 66; Daily v. Fountain, 35 Ala. 26. We can not say this testimony was. conclusive, or that there were no circumstances, the tendency of which was to weaken this evidence, or to show that the lines were correctly shown. How’ever slight the testimony may have been, tending to show that the lines bounding the land were truly pointed out, we can not affirm that the evidence given by the surveyor was all that was before the jury bearing on that question. Slight though the testimony may have been, it was the right of the plaintiff to have it passed on by the jury. — Jones v. Fort, 36 Ala. 449; Partridge v. Forsyth, 29 Ala. 200. The seventh charge asked should have been given. It simply referred to the jury the inquiry, whether the land pointed out was embraced in the deed. The testimony not being of the class called conclusive, the plaintiff had the right to have it weighed by the jury. The remaining charges asked were rightly refused.
For the single error pointed out, the judgment of the Circuit Court is reversed, and the cause remanded.
Brickeel, C. J., not sitting.