Hileman filed his bill in chancery in 1849, against Wright and Snodgrass, for the reformation of a deed. The bill was pending when the new practice went into operation. Trial by the Court, finding for the defendants, and the bill dismissed. Hilemcm excepted, and appeals.
Wright was the owner in fee of a tract of land in Madison county, part of which he sold to Snodgrass, executing a title-bond, and subsequently a deed. Some five or six years after, he sold the residue to Hileman, the plaintiff, for which a deed was executed. In the title-bond to Snodgrass and the deed to Hileman, a certain lane was made the common boundary. Thus, in the bond, the boundary of the Snodgrass purchase, traced to a stone in the center of the lane, runs “thence north with the lane to the section line,” &c. Wright’s deed to Hilemcm is bounded on the west by the same lane. The lane was thus the common boundary between the Snodgrass punchase on the west and Hileman’s on the east. But the deed by Wright to Snodgrass made the east line run due north from the centre of the lane to the section line — omitting the words, “with the lane.” As the course of the lane was west of north, an angle of some acres between the lane and a due north line, was claimed by both parties under their respective deeds.
And the only question is, whether Hilemcm has a right in equity to have the deed to Snodgrass reformed according to the original contract expressed in the title-bond.
It should also have been stated that the deed from Wright to Snodgrass was on record when Hileman purchased.
It is well settled that equity will relieve against mistakes or fraud in a sealed instrument upon parol evidence; but only upon the clearest, most satisfactory proof of the ac*128tual agreement and the mistake. 2 Blackf. 426.—4 id. 432.—3 Ind. R. 183.—1 Story’s Eq. Jurisp. ss. 110, et infra.—10 Ohio R. 85.
The first point is the discrepancy between the title-bond to Snodgrass and his deed. How did that discrepancy occur? — by agreement, by fraudulent design, or by mistake?
The parties (Wright and Snodgrass) had doubtless a right to change the contract and include other boundaries, if they thought proper. The deed itself would be prima facie evidence of that change — the last expressed agreement, delivered and accepted as such. If the change was thus made, not by fraud or mistake, but by consent of Wright and Snodgrass, so long, too, before Hileman acquired title, the latter would be without remedy in this form. In that event he must look to his vendor on the covenants.
But the deed is open to explanation. Equity will either rectify mistakes in deeds founded upon consideration, according to the intention of the parties; or restrain as to the parts in which it has been framed contrary to, or has gone beyond their intention in the original contract. Mitf. Eq. Pl. 150, 151, and note.—1 Johns. Ch. 607.—1 Ohio R. 490.—2 Johns. Ch. 585.—Id. 630. But only, as already stated, upon proof establishing the mistake beyond reasonable controversy. 1 Story, 173.—2 Ind. R. 69.
In most of the cases referred to, the controversy was between the immediate parties to the deed. But the fact that Hileman is a stranger to the deed he seeks to reform, cannot be allowed much weight here; for he is the grantee of the land in controversy from the same grantor under whom Snodgrass claims; and at the time of Hileman’s purchase, Wright, his grantor, and not Snodgrass, was in possession. If his position were thought to be an objection to reforming the deed, he would still be entitled, if the facts otherwise warranted, to a restraining order, as to so much of the deed as went beyond the intention of the parties. Mitf. Eq. supra.
The power of the Court, therefore, to grant relief — either *129that sought, or such as the facts warrant — cannot, in the light of the authorities cited, be doubted.
The next step is to ascertain whether a case of mistake, such as is stated in the bill, has been clearly made by the evidence.
Lindsay, who' drafted the deed, says he had no instructions from the parties directing him to draw the deed differing from the bond; but that if there be any difference between the deed and bond, it is likely he may have made a mistake in drafting the deed. Lindsay elsewhere repeats that he was not instructed to draft the deed differing from the bond as to the words “north with the lane.”
It is further in evidence that Wright and Snodgrass, while they continued to be conterminous owners, occupied up to the lane respectively. Snodgrass made a small clearing on the north part of his land, and Wright a corresponding one on the remaining portion of his land, whereby the lane was extended between them in something of the same direction. After Wright sold to Hilemam, the occupation was the same. Both occupied up to the lane, thus practically giving interpretation to the contract that the lane was the boundary.
It is also in evidence that the quantity sold by Wright to Snodgrass was fifty-five acres. Making the lane the boundary, Snodgrass has west of the lane the proper quantity. Making a due north line from the mouth of the lane the boundary, then, Snodgrass would have an excess of several acres.
Up to 1849, when the surveyor proceeded to establish the boundary line between Snodgrass and Hilemam, all the parties acquiesced in the lane as the boundary. Wright sold by it, both to Snodgrass, as evidenced by the title-bond, and to Hilemam, as evidenced by his deed. On the day of the survey, Snodgrass produced the title-bond of Wright, which he still held, and desired the surveyor to run the line in accordance with that instrument.
It also appears in evidence, that Snodgrass repeatedly admitted the lane to be the boundary. Thus, when interrogated, before any controversy arose, how much land he *130had bought, his reply was, he did not know, as the land had been divided without a surveyor, by himself and Wright, and that the lane was the line adopted by them. And again, that they (himself and Wright) had made the lane between the farms the line. Nor did Snodgrass seem to know, before the day of survey, that the bond and the deed differed; or that the lane varied from a due north line. It would appear that both he and Wright adopted the lane as the boundary, thinking, indeed, that its course was due north.
Wright, one of the defendants, is examined as a witness, and his evidence is so full that we give its substance, and for the most paid its language:—
“ I am one of the defendants to the above suit. I sold the piece of land described in the bill, to Snodgrass. We did not have it surveyed, but the lane was on the east boundary line of the land sold to him, and was made part of the line. The fence on the Snodgrass side of the lane was the line. It ran through the improvement about ninety rods. After the sale, Snodgrass extended his fence, with the lane range, some ten or fifteen rods, corresponding with that fence. I extended my fence, on the other side of the lane, fifty rods or more. At the time of the sale, I gave Snodgrass a title-bond, in which the lane was made the east line. The deed from me to Snodgrass was intended to correspond with that bond. If it differs from that bond, it is not correct. The difference, if any, was not intended. Snodgrass and I occupied adjoining farms for five or six years, and had no difference about lines. I also made the deed to Hileman to correspond with the line to Snodgrass. Both sales were made without survey. I sold to Snodgrass to the lane, being fifty-five acres more or less: I mean to the stone, and running thence a north course with the lane. The lane was established as the boundary, without regard to its bearing, and without any intention to resurvey.”
Nothing material was elicited on the cross-examination, nor in the evidence of the defendant.
Upon this state of facts we think the Court erred in dis*131missing the bill. The original contract was clearly ascertained. The bond, the admissions of Snodgrass, the quantity of land, and the acts of the parties, all accord. They a[l corroborate the claim of Hilemcm, that there was a mistake in the deed. The evidence shows specifically wherein and how the mistake occurred. Had Wright still held the land which he deeded to Hileman, his right to have the deed reformed would be clear beyond controversy. In short, here is the clearest and most satisfactory proof, in the language of the books, both, of the mistake and of the real contract. 4 Blackf. 432.—1 Ves. 317.—4 Cruise, 212.—10 Pick. 379.—1 Story’s Eq. Jurisp. tit. “Mistake.”
J. Davis, for the appellant (1). D. Kilgore, for the appellees.Perhaps, however, the measure of the relief will come more properly in some other form than in a technical order for the reformation of the Snodgrass deed. 1 Story’s Eq. Jurisp. 164. It will be equally efficient, and more appropriate, to declare the contract, as ascertained by the evidence, to be, that the lane was and is the boundary; that the words, “north with the lane,” were part of the original contract, and should have been in the deed; that they were omitted by mistake of the draftsman — and that, therefore, Snodgrass is not entitled to claim, and is enjoined — he and all others holding under or through him— from claiming, anything by virtue of the mistake and defective description .in the deed.
Per Curiam.The decree is reversed with costs. Cause remanded, with instructions to the Court below to enter judgment in accordance with this opinion.