ANDERSON, C. J. —
(1) While the bill avers a sale of the equity of redemption by W. J. Dennis and wife, the owners and mortgagors of the land, to Whitehurst, and a conveyance by said Whitehurst to J. S. Carroll, it also avers that this only cured the defect as between the said Carroll and the mortgagors, but expressly sets forth the fact that the said last conveyance did not affect the intervening mortgage of the respondents, who had the legal title under their mortgage to the 80 acres of land in question, subject to the equity of the complainant arising out of the misdescription of the land in the complainant Carroll’s mortgage, and of which the respondents had notice. The bill did not therefore show that the complainant had the legal title to the land, or that his right to have the mortgage reformed rested upon his subsequent purchase of the equity of redemption from Whitehurst, and the said bill was not subject to the respondent’s demurrer which was properly overruled by the chancery court.
(2) It may be conceded that there was such a mutual mistake as would authorize a reformation of the mortgage as between the parties thereto;.but after a careful consideration of the evidence we are of the opinion that the respondent was a purchaser without notice of the 80 acres in question. The complainant’s mortgage was not constructive notice as to the land not contained therein, and there was nothing in it to show that it was intended to convey all of the mortgagor’s land.
(3) The complainant attempted to show actual notice, and the burden of proof was upon him to do so; but *406upon a consideration of the evidence in its entirety, taking into consideration also tbe surrounding facts and circumstances, we are not satisfied that the respondent had notice of the complainant’s equity, when taking the mortgage and extending the indebtedness. The chancery court erred in granting the complainant’s relief, and the decree is reversed, and one here rendered dismissing the bill of complaint.
Reversed and rendered.
Mayfield, Somerville, and Thomas, JJ., concur.