J. Park Lyon et al, heirs of Augusta Mc-Clintock brought this action originally in the Licking Common Pleas fo-r partition of a certain property owned by the deceased who died testate. James Balthes and Ida Sawyer, brother and sister of the deceased filed a cross petition seeking, reformation of-a deed to include a deed to them so that said deed might include the property which is sought to be partitioned.
It appears that Augusta McClintock, deceased, owned a business property on the main street of the village of Hebron with a frontage of 37 feet and 7 inches, which property was conveyed to the deceased by two deeds from her mother. The property consisted of a building which included two store rooms with a stairway between, the second story consisting of apartments for residential use. Prior to her death McClintock delivered to a notary a certain deed without making any examination thereof in order that the notary might prepare a deed conveying the property to Balthes and Sawyer. The notary made no examination of the deed and his stenographer made a copy of the description in a deed conveying the property to Balthes and Sawyer which deed was executed without being read and delivered to the Notary with instructions to hold it until McClintock’s decease at which time the notary was to deliver the deecl to Balthes and Sawyer. The deed was delivered in accordance with these instructions and properly filed for record and at a later date the- grantees in this deed upon preparing to sell the property discovered that the deed actually conveyed only 15 feet of the 37 feet. By the cross petition it was sought to reform the deed to include the 23 feet which was omitted by mistake. The decree of the Common Pleas refusing reformation and granting partition was affirmed by the Appeals.
Sawyer and Balthes in the Supreme Court contend:
1. That the mistake was made by the no. tary.
2. That as a matter of law equity should reform the deed even though the mistake was made by only one party.