By the Court,
Colts, J.After having’ carefully examined the testimony in this case, I am free to confess that it fails to satisfy my mind that a mistake was committed upon the sale of the property mentioned in the pleadings. At the same time it must be conceded that there is some testimony of the statements and admissions of the parties while negotiating the sale, which goes to show that Newton expected he was buying, and that Holley agreed to sell that part of lot three in controversy.
But it does seem to me that this testimony is too vague and unsatisfactory to authorize this court in saying that a mistake was made, and that this parcel was actually sold to Newton. Particularly is this evidence unsatisfactory, when we consider that none of the witnesses who testify about the mistake or fraud, were present when the sale was consummated, and the deed and mortgage drawn up, except the witness Beardsley, and he testifies upon the fact as follows:
“ Parties both met me in the street and told me they wanted *604me to go up to my office and make out some papers; went in the office and Holley brought in the deeds and wanted me to copy the same into a deed to Newton. Newton was with him; both 'came in together; were both right at the counter ; was nothing said by Newton. I went on and made a deed including all of that property from Holley to Newton. I was requested to copy into the deed to Newton all the property described in the deeds brought in by Holley. The deeds brought in were a deed for lot No. lour (where the tavern stands) and a deed (or deeds) tor the fractional lots where the barn stands; was no plat present. Holley instructed me to draw a deed of the premises, and Newton told me to draw a mortgage on the same premises to Holley, which I did. The instructions from both parties were to draw a deed of lot No. four and the fractional lots, subject to a mortgage held by Cook and Sherwin, on the same premises. It was in the evening when I drew the papers; they told me to bring the papers down to the house when they were made out, and I took them down and read them over to the parties twice.”
It is true the witness says on his cross-examination that he did not recollect whether Holley left a deed of lot four and the premises in dispute or not. But he does say that he went strictly according to instructions in making the deed. If this witness is to be believed, and there is nothing in the case going to impeach his testimony, then surely, to say the least, the proof is very doubtful and unsatisfactory about a mistake having been made. And I suppose in cases of this kind the writings between the parties must be taken to contain the real contract, and we must hold that the deed embraced the land intended to he conveyed until the contrary is established beyond reasonable doubt. For the rule is well settled that equity will withhold relief unless the mistake is made out in the most clear and decided manner, and to the entire satisfaction of the court. 1 Story Eq., J. Section 152; Gillespie and Moon, 2 J. C. R. 585; Lyman vs. United States Ins. Co., Id.630. It follows from the view which I have taken of this case that the judgment of the circuit court must be reversed and complainant’s bill dismissed. Smith, J. Dissenting.