dissenting. The action in this case was brought to cancel an agreement in writing, under seal, entered into by the plaintiff and defendant on the 19th day of November, 1894. Its terms show that the agreement was for the sale by the defendant to the plaintiff of all the pine timber of certain specified dimensions “on that tract or parcel of land belonging to said McAlister, situate in Oconee County, South Carolina, containing 369 acres, more or less, and known as the Gibson tract, and adjoining lands of Wickliffe and others,” at the price of $1,000, payable in three equal instalments, on the first days of January, April, and July, 1895, respectively.
The action is based upon the allegation that there was a mutual mistake of fact as to the lines and boundaries of the tract of land referred to in the agreement. Of course, the burden of proof is upon the plaintiff to show such alleged mistake, and this he must do by clear and convincing *240testimony, as it is no small thing for a court of equity to 'set aside a formal agreement, under seal, entered into by parties competent to contract. Now, while it may be that the evidence is sufficient to show that the plaintiff was under a mistake as to the lines of the tract of land upon which he agreed to buy all of the timber trees of certain dimensions, I am unable to discover any evidence that the defendant was laboring under a like mistake. In pursuing this inquiry, the natural order would seem to be to inquire whether any, and if so what, portions of the testimony was incompetent. Upon this point the Circuit Judge does not seem to have made any specific ruling, as he nowhere in his decree alludes to the exceptions taken by the appellant to the testimony; and as he heard the case upon the testimony taken by the master, where exceptions were plainly noted to portions of the testimony, the inference is that he regarded all the testimony as competent, especially as he rests his conclusion upon “the testimony taken and reported by the master,” which embraces that to which exception was duly taken and noted. A large part of this testimony consisted of declarations of Geo. S. Hamilton and of the witness, Evers, who were examined on behalf of the plaintiff, and, in my judgment, all such declarations were clearly incompetent, as mere hearsay. I think, therefore, without pursuing this inquiry further, that appellant’s fifth, sixth, and seventh exceptions are well taken. As to the eighth exception, relating to the rough sketch made on a piece of brown paper, I am not so clear; but in the view which I shall take, this becomes a matter of small importance. It is clear from the testimony that the defendant did not know, and did not profess'to know, the lines of the tract of land upon which he was selling the timber trees. Such is the testimony, not only of the defendant, but of the plaintiff himself, for he says: “He (the defendant) did not appear to know himself exactly about the boundaries;” and this is manifest from the testimony of both Geo. S. Hamilton and Earnest Evers. Then, when the parties met for the pur*241pose of entering into the agreement, it is manifest that both parties understood that the one was buying and the other was selling the timber trees on the Gibson tract as represented by a plat thereof, but that plat not being accessible on the day the agreement was signed, the transaction was not then finally closed, but the arrangement was, that defendant was to send the plaintiff the said plat with the notes for him to sign. Accordingly, on the 21st of November, 1894, the defendant did send the plat and notes to the plaintiff, enclosed in a letter, which was received by plaintiff on the 24th of November, 1894, and, on the 27th of that month, plaintiff sent to defendant the notes signed, in a letter, saying that he wanted to keep the plat “until Christmas, when I want to go up and look at your boundaries;” and plaintiff, in his testimony, says that when he saw the- plat he saw that the rough sketch made on a piece of brown paper did not correctly represent the lines of defendant’s land. And yet the plaintiff admits that more than a month after he had seen the plat which did correctly represent the lines of the land, he paid up the first note, which became payable on the 1st of January, 1895, without a word of objection. So that even if the rough sketch on the brown paper was competent evidence, and even if it was misleading as to the lines of the land, yet the plaintiff was not misled by it, or, at least, ought not to have been misled by it, as he had in his hands the means of ascertaining what were the lines, and if he chose to close the contract before using those means, he must take the consequences of his own folly and culpable negligence. In a word, the testimony leaves no doubt on my mind that both parties fully understood that the one was selling and the other buying all of the timber trees of specified dimensions on the tract of land known as the -“Gibson tract,” as it was represented by the plat, and that there was no mutual mistake at all, either as to the lines of the land or anything else. If there was a mistake, it was on the part of the plaintiff alone, and not superinduced *242by anything said or done by the defendant, but by the loose talk of the neighborhood, and by the neglect of the plaintiff himself to use the means at hand for the purpose of correctly informing .himself. Such a mistake affords no ground for relief even in a court of equity. As is said in 2 Pom. Eq. Jur., section 839: “The erroneous conception or conviction of the understanding which constitutes the equitable notion of mistake, has nothing in common with negligence; equity will not relieve a person from his erroneous acts, or omissions resulting from his own negligence.” To same effect see 15 Am. & Eng. Ency. of Eaw, 628, et seq. This doctrine is recognized by our own decisions. Murrel v. Murrel, 2 Strob. Eq., 148; Kennerty v. Etiwan Phosphate Company, 21 S. C., 226.
I think, therefore, that the judgment of the Circuit Court should be reversed, and the complaint dismissed.