Jones v. Jones , 88 Miss. 784 ( 1906 )

Truly, J.,

delivered the opinion of the court.

We find ourselves unable to agree with the chancellor in his conclusion that the deed from appellee to appellant should be reformed. It appears to our mind conclusive that the real intention of the parties was that appellant should have ninety acres of land. We find no such preponderance of testimony establishing fraud, error or mutual mistake as would authorize the interposition of a court of chancery to order a change in the deed. This is not a case where one party gives as an act of bounty a tract of land to another, but is a transaction in which for a certain stipulated money price certain definitely described land was conveyed. The deed in its terms is free from any ambiguity, doubt or uncertainty; the land conveyed being described with absolute accuracy, so as to exactly convey the specific number of acres.

The appellant contends that the number of acres was the only important matter determined on in advance, and that the description was written sg that it would embrace the specific acreage, and not that it might include any particular tract of land. This testimony is, in our .judgment, strongly corroborated by the subsequent conduct of the appellee in granting a right of way from one tract to another, in which the description, of. the two parcels previously conveyed was again recited. So, also, it is corroborated by the repeated statements of the appellee, after the conveyance, that he had conveyed, and that it was his intention to convey, to appellant ninety acres of land. Adhering to the arbitrary, but salutary, rule which requires a party seeking a reformation of a deed, the recitals of which are definite and unambiguous, to establish, not only by the preponderance of the testimony, but practically to the exclusion of every other reasonable hypothesis, that mutual mistake, fraud, or error occurred in the making of the instrument sought to be .reformed, we are constrained to hold that the proof in this case fails to measure up to that requirement. The decree is not justified by the facts, and cannot be sustained.

The decree is reversed, the cause remanded, and the hill ordered dismissed.