The facts sufficiently appear in the opinion. This is a suit for the purpose of correcting a mistake in a deed.
The evidence upon the part of plaintiff tended to show that in the month of November, 1876, defendant agreed to sell his entire interest in the Wilson mining district, in this state, consisting of mines, milling property, water rights and wood lands, for the sum of $5,000. Plaintiff agreed to purchase the same, and in the course of time a deed was executed by the defendant. After the execution of the deed defendant declared in the presence of disinterested persons that he had sold his entire interest in the district, and shortly thereafter left the locality and remained away seven years or more. Upon his return he leased from the plaintiff a portion of the property omitted in the deed of conveyance. *Page 272 Afterwards others leased a portion of the same mining property omitted in the deed. A controversy arose, resulting in a lawsuit between the lessees and defendant concerning the ownership of ores extracted. It was then for the first time ascertained that defendant claimed to be owner by location of the property. It was also discovered that the deed made no mention of the omitted property. A few months thereafter the present suit was commenced.
It was also shown that the omitted property consisted of unpatented mining claims, which, in default of the performance of annual work, were subject to location. Plaintiff has kept up this work. The deed was in the handwriting of defendant. A memorandum containing a list of the property of the defendant in the district, in which was included the omitted property, was introduced. The evidence upon the part of defendant tended to contradict some of these facts.
A decree awarding plaintiff the relief prayed for was entered by the district court.
A motion for new trial was made and denied, and defendant has appealed. One of the grounds of motion is insufficiency of the evidence to support the judgment.
The evidence was conflicting, but upon all material matters there was substantial testimony in support of the contention of the prevailing party. No express findings were made. In their absence the law implies findings in favor of the judgment.
Another point is that the mistake was not a mutual mistake. It must be conceded that a mistake must be mutual to come in the cognizance of a court of equity.
In Botsford v. McLean, 45 Barb. 478, this question was considered. The court said: "So far as mistake constitutes the ground of jurisdiction in the courts of equity to give relief, it is, I think, quite well settled that the contract will be reformed in all cases of clear mistake, or, as some of the cases say, of mutual mistake. A little confusion and misconception, I think, has crept into the cases from the inexact use of the word `mutual,' as applied by way of description or classification of the kind of mistakes which courts of equity would reform. According to the real significance of the word *Page 273 `mutual' in such connection, and the ordinary acception and understanding of the term, mutual mistake would mean a mistake reciprocal and common to both parties, when each alike labored under the same misconception in respect to the terms of the written instrument. * * * When parties have entered into a written contract it must be presumed to express their common intentions and to speak their actual agreement. But if it be clearly shown that such is not the case, and that such written contract is untrue, and misrepresents or misstates their real agreement and intentions as made and understood by both parties, in some essential particular, then such contract is a mistaken one, and such mistake may be corected in a court of equity, in respect to such particular error."
In cases like the present, where one side claims that a mistake exists and the other denies it, it was the duty of the court to determine which contention was correct, and, by giving judgment in favor of plaintiff, the presumption is that the issue was implicitly found in his favor.
Laches and the statute of limitations are interposed as a defense to the suit. The parties were brothers. Their relations were of mutual trust and confidence. Plaintiff, up to the time that he learned that the defendant had relocated the Midas mine and of the omission in the deed, had implicit confidence in him. Nothing had occurred to interrupt these relations or excite distrust or suspicion until this time, and the suit having been commenced shortly after the discovery of the omission in the deed he is not chargeable with laches.
The deed was recorded March 20, 1877. It is said that the record was notice to the plaintiff of its contents. It may be observed that the record is not notice of anything not contained in the deed. We are satisfied, however, that the statute of this state concerning records (Gen. Stats. 2594) is not intended to impart notice other than to subsequent purchasers and mortgagees. (McCabe v. Grey, 20 Cal. 516.)
Judgment affirmed.
*Page 274BONNIFIELD, J.: I concur.