(after stating the facts). (1-2) The plaintiffs are children and heirs at law of W. M. Welch, deceased. They admit in their complaint that their father intended to convey by deed to C. W. Welch, his home place of eighty acres. In the prayer to their complaint they ask that the deed from W. M. Welch to C. W. Welch be canceled, except as to the eighty acres described and known as the home place, and that the title to same he vested in them except the interest of C. W. Welch in the lands under the law of descents and distributions in this State. The evidence shows that W. M. Welch took a tax receipt describing all Ms lands, 480 acres, to J. I). Block, an attorney, and asked Mm to prepare a deed to Ms son, C. W. Welch, to said lands, and that the attorney did so, and delivered the deed to W. M. Welch. About that time C. W. Welch came into Block’s office. W. M. Welch then handed the deed to his son, C. W. Welch, and said: “Take it and go and record it.” The theory of the plaintiffs is that the father only intended to convey to his son the home place comprising eighty acres. That he could not read nor write, and relied absolutely .upon his son in preparing the description to the land. "That W. M. Welch was laboring under the mistake that the tax receipt only contained a description of the home tract of eighty acres and did not know that it contained a description of all Ms lands, comprising 480 acres. That(C. W. Welch, knowing these to be the facts, concealed the truth from his father in order to secure a conveyance of Ms father’s lands, which he well knew his father never intended to convey to Mm. This .would be a case of a mistake of one party accompanied by fraud or inequitable conduct of the other party, which is a good ground for reformation of a written instrument. It is not alone in cases of mistake that a court of equity will reform a written instrument. Under the head of Reformation and Re-execution of Instruments, Professor Pomeroy says: “This subject has already been treated under the head of ‘Mistake’ and little more need here be said. Equity has jurisdiction to reform written instruments in but two well defined cases: (1) Where there is a mutual mistake — that is, where there has been a meeting of minds — an agreement actually entered into, but the contract, deed, settlement, or other instrument, in its written form, does not express what was really intended by the parties thereto; and (2) where there ha,s been a mistake of one party accompanied by fraud or other inequitable conduct of the remáining parties. In such cases the instrument may be made to conform to the agreement or transaction entered into according to the intention of the parties. The conditions of fact giving rise to the exercise of the jurisdiction to grant reformation are numerous. Almost all written instruments may be reformed when a proper occasion is furnished.” Pomeroy’s Equity Jurisprudence (3 ed.), vol. 4, par. 1376; and see, also, vol. 2, par. 870; 34 Cyc., pp. 920 and 921.
The following cases recognize the rule and grant or deny the relief according to the facts of each particular case: Pyne v. Knight (Iowa), 106 N. W. 505; Williams v. Hamilton (Iowa), 73 N. W. 1029; Crookston Imp. Co. v. Marshall (Minn.), 59 N. W. 294; Dean v. Hall (Ky.), 105 S. W. 98; Gregory v. Copeland (Ky.), 107 S. W. 768; Taylor v. Deverell (Kan.), 23 Pac. 628; Koons v. Blanton (Ind.), 27 N. E. 334; Bergen v. Ebey, 88 Ill. 269; Kilmer v. Smith (N. Y.), 33 Am. Rep. 613; Sykes v. Life Ins. Co. (N. C.), 61 S. E. 610; Dannelly v. Cuthbert Oil Co. (Ga.), 63 S. E. 257; Venable v. Burton (Ga.), 59 S. E. 253; Sloss-Sheffield Steel & Iron Co. v. Aetna Life Ins. Co. (N. J.), 70 Atl. 380; Chelsea Nat. Bank v. Smith (N. J. Chy.), 69 Atl. 533; Metcalf v. Putnam (Mass.) 9 Allen 97; Burchard v. Frazier, 23 Mich. 224.
It is true some of the cases cited are cases of reformation for mutual mistake only, but others are cases where reformation was granted where there was a mistake on the part of one party, coupled with fraud on the part of the other. All of the cases cited recognize the rule announced by Professor Pomeroy as well established. See, also, Martin v. Hempstead County Levee Dist. No. 1, 98 Ark. 23. In Cox v. Beard (Kan.), 89 Pac. 671, it was said that the case came fairly within the well established rule that a deed is reformable, where, by the mistake of one party and the fraud of another, there is omitted from it land which it was stipulated should be conveyed, and numerous decisions aré cited in support of the proposition.
In Crookston Imp. Co. v. Marshall (Minn.), 59 N. W. 294, there was conveyed more land than was intended, and the court held under the particular facts of that case a reformation should be granted. The relief was granted in the application of the rule that the- mistake of one party, accompanied by fraud or other inequitable conduct of the other party, may be good ground for the reformation of a written instrument, and Pomeroy’s statement above copied was cited in support of the holding. The plaintiffs in this case are the children and heirs at law of W. M. Welch, deceased, and are entitled to only such rights as he was entitled to in his lifetime. It is admitted that the father intended to deed to his son the home place of eighty acres and that the deed to so much of the land should stand. While the relief prayed for is not called reformation, the facts bring it within that head of equitable relief.
(3) The next proposition of law to be considered is to determine the amount of proof required to afford relief in cases of this sort. In Eureka Stone Co. v. Roach, 120 Ark. 326, the court said: “It is the settled rule of this court that to justify or authorize the reformation of a written instrument on the ground of fraud or mistake, the evidence of such fraud or mistake must be clear, unequivocal and decisive. ’ ’
In Mitchell Manufacturing Co. v. Kempner, 84 Ark. 349, the court said: ‘ ‘ The written contract contained an express stipulation that the machines were ‘not guaranteed against slugs, spurious coin or the weather,’ and until it is established that this stipulation was inserted in the contract by fraud, accident or mutual mistake, it must be taken as a true expression of the agreement of the parties. The solemn written engagements of contracting parties can not be reformed except upon clear and satisfactory proof that the writing fails, by reason of fraud, accident or mutual mistake, in the preparation or execution thereof, to express the agreement intended to be entered into. ” Martin v. Hempstead Co. Levee List. No. 1, 98 Ark. 23.
It is objected that these cases can not be used as authorities to sustain the rule of evidence in cases of mistake of one of the parties coupled with the fraud of the other, for the reason that the first case was a case of mutual mistake and that the cases cited to sustain the principles laid down in the latter case were cases of mutual mistake. This does not lessen their force as authority ; for the court was speaking of the recognized grounds for reformation of written instruments and there would be just as much reason for the rule in one case as another.
In Duecker v. Goeres, 80 N. W. 91, the Supreme Court of Wisconsin said: “Testing the findings under consideration by the familiar rule that to warrant the reformation of a written instrument because of fraud upon the one side and mistake upon the other, or of mutual mistake, the facts in that regard must be made to appear by the most clear and satisfactory evidence, so as to leave no room for reasonable controversy on the subject, they can not be sustained. ’ ’
In Pyne v. Knight, 106 N. W. 505, the Supreme Court of Iowa said that to justify reformation of a deed there must have been a mutual mistake or mistake on the part of one party, coupled with fraud on the part of the other; and the evidence showing this mistake must be clear, satisfactory and free from reasonable doubt.”
In Taylor v. Deverell, 23 Pac. 628, the Supreme Court of Kansas recognized this as a familiar rule of evidence, saying: “It is true, as claimed, that to sustain a reformation of a deed, the testimony showing fraud should be clear and satisfactory to the court. ’ ’
Professor Pomeroy says that parol evidence may be introduced in cases of reformation, especially where the ground of relief is fraud, and recognizes that the parol evidence must be most clear and convincing. Pomeroy’s Equity Jurisprudence (3 ed.), vol. 2, par. 859, and vol. 6, par. 682.
In Boyd v. Boyd, 123 Ark. 134, it was held that evidence of declarations of a grantor, while of sound mind, prior to the execution of the deed, as to his intentions concerning the disposal of his property, was admissible on the question of fraud and undue influence in procuring the execution of the deed. It is insisted that, by analogy, the same rule applies to the declarations of W. M. Welch and his wife after the execution and delivery of the deed in question to C. W. Welch, to the effect that he intended to divide his property among all his children. We do not think so. Such declarations would have a tendency to defeat the title he had conveyed to his son.
(4) In King v. Slater, 96 Ark. 589, and other decisions of this court, it has been held that the acts and declarations of a person in possession of a tract of land are admissible to show the character and extent of his possession, but not to contradict his deed to another. In that case we quoted with approval from Prater v. Frazier, 11 Ark. 249, as follows: “The declarations of a donor against the title of the donee, made in his absence, are not admissible in evidence to defeat the title of the latter.” The declarations of W. M. Welch and his wife as to what disposition he intended to make of the lands in controversy were made after the execution and delivery of the deed to C. W. Welch and were made in the absence of the latter. Therefore, they are not admissible as evidence against the defendants, in this case. Bearing these rules of law in mind, we now come to a consideration of the facts as disclosed by the record. While W. M. Welch could neither read nor write, and relied on his son, C. W. Welch, in the transaction of his business to a great extent, .still the record shows that he was a man of strong mind and exercised a superintending control over his affairs. It is admitted that he intended to convey to his son the home place. He went to the office of Mr. Block with his tax receipt and asked him to prepare a deed to all the lands on it to his son. The deed contained the following: ‘ ‘ This conveyance is made subject to the following conditions: That the parties of the first part are to have during the natural life of both of them the use, occupation and rents arising from all of said lands.” The use of this language indicated that several tracts were embraced in the deed. Moreover, while it is true, Welch could neither read nor write, he was a man of strong intellect and one who looked closely after his affairs and would likely have noticed that several tracts of land were contained in the deed. The fact that he could neither read nor write would not prevent him from recognizing descriptions of land when read to him. Opposed to this is the testimony that C. W. Welch recognized his father’s right to control the land on several occasions after the execution of the deed. The fact that the land deeded to John Welch was embraced in the deed to C. W. Welch is a circumstance tending to show that the father did not intend to execute the deed to all the land described in the tax receipt. It may be, however, that the father overlooked this tract, and thought that all the lands in the tax receipt still belonged to him. These and other circumstances recited in the statement of facts (and which need not be repeated here), tend strongly to establish the contention of the plaintiffs. We do not deem it necessary to go into an extended discussion of the testimony. When the whole testimony is read and considered together, in the application of the rules of law above announced, we do not think that the plaintiffs have established their case with that clear, unequivocal and decisive evidence which would warrant this court in reversing the decree of the chancellor.
We need say but little here on that branch of the case pertaining to the claim of John Welch. The evidence shows that the father gave him this tract of land in 1874 and John Welch immediately went into possession of it, and has held adverse possession of it ever since. The deed to C. W. Welch was not executed until 1904. At that time John Welch had already obtained title to the land claimed by him by adverse possession.
It follows that the decree must be affirmed.
HUMPHREYS, J., dissents.