delivered the opinion of the Court:
It is not questioned that chancery can correct a mistake in a contract, and after reforming the contract can decree specific performance. It is insisted by appellants that appellee is seeking to enforce a parol contract for the sale of land, inasmuch as he is obliged to resort to parol evidence to make out his case. The contract in question is a written contract attended by a mistake, as alleged, in describing the land. It is quite a familiar doctrine, recognized by this and other courts, that parol evidence may be resorted to for such purpose. The terms of the contract are in writing, and no resort to parol proof as to them is had. The bill alleges that a written contract was entered into for the conveyance of a certain tract of land, in a certain section, township, and range, but the tract was misdescribed as being in a quarter of the section to which the vendor had no title, but had title to the tract intended to be conveyed, in another quarter of the same section.
The next point appellants make is, if the allegations in the bill were all proper, the proof is not sufficiently clear to authorize a decree for specific performance.
This is the important point in the case. The court must be satisfied such a contract has been made as alleged. And not only this, but after a long period has elapsed, a court must be cautious in enforcing a specific performance of a contract where there is any real doubt about its existence and its terms. Rector v. Rector, 3 Gilm. 105.
This contract is alleged to have been made December 1, 1855, and no effort made to procure its performance until 1868, and whilst it is asserted in an oath on the one hand, and denied with equal positiveness on the other, that such a contract as alleged was ever made, conviction is not brought home to the mind, and uncertainty and doubt must exist. We have examined the testimony in this record with great care, and we are not convinced the contract as sought to be enforced was ever made with Robert McCornack. The occupancy of the premises may as well be referred to the agreement made by McCornack with his sister that she should occupy them during her lifetime, as that they were sold by McCornack to David McConkie, and he put in possession. The fact is proved beyond question that during all the time, appellant McCornack has paid the taxes on this land, and no claim was set up to it by McConkie until this assignment of the alleged contract to the complainant, Sage, and it is not shown Sage ever paid one dollar for the contract.
It is true, there is no deed in evidence or other writing from McCornack to his sister, Elizabeth, the wife of McConkie, yet he testifies there was such a deed, which he handed to Leighton to deliver to his sister. Her subsequent insanity may account for an inability to produce it. W e have no reason to doubt such a writing was delivered to her, and it is unjust on the part of her husband to attempt to deprive her of the benefit of it. On the whole case, as developed in the record, the uncertainty attending the alleged execution of the contract by McCornack, and all the accompanying facts, it does not seem to us such a case as to demand the equitable interposition of this court to correct the alleged error, and then decree a specific performance of the contract.
The decree of the court below must be reversed.
Decree reversed.
Mr. Justice Craig, having been of counsel in this case in the circuit court, took no part in the consideration or decision of the case.