1

Davenport v. Widow, etc., of Sovil.

by the petition and admitted by the demurrer. The plaintiff ought, unquestionably, to be relieved, *unless, in the peculiar posi- [462 tion in which an innocent and not unfrequent mistake has placed him, he is precluded from its attainment by some inexorable rule of law.

At the outset of our inquiries, it is proper to notice: 1. That, there being in the petition a prayer for alternative and general relief, this court, and that to which it may be remanded, will be restricted to no particular mode or measure of relief, but will be entirely at liberty to adapt either to what may be demanded by the particular circumstances of the case, as they may be developed; and, 2. That the children and heirs of Sovil, having succeeded to his rights and equities, and no more, and there having been, so far as appears, no alienation of, or contract affecting, the land which Sovil did own, and intended to mortgage, intervening, prior to the commencement of this proceeding, we are entirely unembarrassed by any claims in favor of any third party; and the case, therefore, is to be decided with a view solely to the relations and consequent equities of the original parties to the contract of mortgage.

The plaintiff, alleging a mutual mistake of the parties in the description intended to identify the entire subject-matter of the mortgage-a mistake vital to the entire contract-seeks, on the ground of that mutual mistake, to reform that contract, so as to make it what the parties intended and justice required it should be, and what, had no mistake of fact occurred, it would have been; and then to enforce the contract thus reformed. Whether this can be done, is the first question to be considered.

Whether a plaintiff, seeking affirmative relief, can thus reform and then enforce a written contract, on the strength of parol proof alone, and against an answer denying the alleged mistake, is a question in reference to which, it must be admitted, there is a decided and irreconcilable conflict of authorities. In the affirmative, we have the opinions of those eminent chancellors, Kent [463 and Story, given after mature and repeated deliberation. Gillespie v. Moore, 2 Johns. Ch. 585; Keisselback v. Livingston, 4 Ib. 144; Story's Eq. Juris., sec. 153, et seq. The correctness of these opinions seems also to have been uniformly held or recognized in Ohio. Hunt & Phillips v. Freeman, 1 Ohio, 490; Young v. Miller, 10 Ohio, 88, 90; McLouth v. Rathbone, 19 Ohio, 21, 24. And we may fairly infer that this holding has commended itself to legislative approval, VOL. VI-23 353

Davenport v. Widow, etc., of Sovil.

for, in the midst of this course of judicial action, the act of March 22, 1849, "to give additional security to land titles" (Swan's Stat. 314), was passed, providing that errors, mistakes, and defects in the deed or other conveyance of husband and wife, thereafter to be executed, and intended to convey or incumber the lands or estate of the wife, or her right of dower in the lands of her husband, might be corrected, amended, and relieved against, in the same manner and to the same extent as the deeds or conveyances of other persons.

It is admitted everywhere that a defendant in equity may allege, and prove by parol, a mistake in a contract sought to be enforced against him; and we are unable to perceive any good reason why a distinction should be made between a plaintiff and defendant in cases of this kind. That it is difficult or impossible to reconcile this doctrine with the letter of the statute for the prevention of frauds and perjuries, may be admitted; but it would be quite as difficult to reconcile with that statute the unquestioned doctrine that a parol contract for the sale of lands, when partly performed, is not within its operation. In both cases we proceed on the ground, that to allow the statute to operate would be to give success and effect to the very evil the statute was designed to prevent. And, so far as a uniform course of judicial determination can settle anything, 464] it would seem to be as well settled, at least in Ohio, that mutual mistake of the parties to a contract concerning lands will take the case out of the statute of frauds, as that a part performance will do so.

It may indeed be a question whether the ingrafting, by judicial decision, of any exceptions on the strict and literal provisions of the statute, was warranted by sound policy. But this was a question not as much for us as for those who have preceded us. The principle and practice of allowing such exceptions has now been carried too far to admit of their being shaken, except by direct legislation; and the equity of the established exceptions to the operation of the statute, appeals too strongly to the general conscience to warrant the anticipation of any such interference.

Contracts concerning lands, then, may be reformed, on the ground. of mutual mistake of the parties to them; and when thus reformed may, in the same proceeding, be enforced; and such mistake may be proved by parol. But it ought not to be forgotten that the contract, as committed to writing, is properly presumed to be the best evidence of the real intention of the parties, and therefore, before

Davenport v. Widow, etc., of Sovil.

courts proceed to administer a remedy for the alleged mistake, they should require its existence to be established by very clear and satisfactory evidence.

But in this case, the mistake not only occurs in the mortgage, but has been carried into the decree and sale of the premises described in the mistaken mortgage; and it is contended that the mortgage is merged in the decree, and the decree satisfied by the sale. And this presents the second question on which we are to pass.

Here was a total mistake in the description of the land intended to be mortgaged. The mortgage was intended to embrace premises which the mortgagor did own, but by *mutual mistake it de- [465 scribed only a parcel of land which the mortgagor never did own, and to which he never had or pretended to have any claim. The demurrer to the petition admits this; and if it were denied, and clearly and satisfactorily proved, the case would be the same. Let the mortgage be reformed, and made to conform to the intention of the parties; how then stands the case? The reformed mortgage is not merged in any decree, for there is no decree for the sale of any premises described in the mortgage as corrected and reformed. The decree may be satisfied, at least pro tanto, to the amount of the sale; but the decree was based on the mistaken, and not on the true, mortgage; the sale was of land not embraced in the true mortgage; no money or other valuable thing was ever received by the plaintiff'; the whole proceeding is infected by the original mistake, and is therefore baseless, unsubstantial, and nugatory.

In the conclusion at which we have arrived on the question, we are not without the support of highly respectable authority. The case of Blodgett et al. v. Hobart et al., 18 Vt. 414, presented a question exactly analogous to that now before us, except that there was a decree of absolute foreclosure, instead of a decree for sale of the mortgaged premises, as in this case; and the misdescription went to a part, instead of the whole, of the mortgaged premises. It was there held that, "if the mistake was mutual, and be not discovered until after a decree of foreclosure has been obtained upon the mortgage, and the time fixed by the decree for the payment of the mortgage debt has expired, and the mortgage be then ordered to be reformed, the decree of foreclosure will be opened, so as to permit the mortgagor to redeem the entire premises by payment of the entire sum due upon the mortgage." And the cautious and carefully considered observations of *Ranney, J., in Hollister v. Dillon, 4 [466

Brown v. Brown et al.

Ohio St. 209, are of like tendency. We are of opinion, therefore, that the decree and sale under the mistaken mortgage constitute no just obstacle to the plaintiff's relief; especially as he will, by the record of this case, be forever estopped from claiming any title to premises purchased under the decree.

At present the case stands on demurrer to the petition, which admits the facts to be as alleged by the plaintiff. Of course it is impossible to foresee what developments may be made in the proof, if proof shall be taken in the court below, after the case shall be remanded, or what modified form it may assume; but if, on the final hearing of the case, the facts shall satisfactorily appear to be substantially as they are alleged in the petition, the decree, after reforming the mortgage, ought to order an appraisement and sale of the premises, as described in the mortgage as corrected; because those premises have never yet been advertised or sold; the attempt to advertise and sell having been totally mistaken and nugatory. But the sale, if made, must be made subject to the widow's right of dower in the premises. The mortgage can not be reformed as against her. Carr v. Williams, 10 Ohio, 305; Purcell v. Goshorn and Wife, 17 Ohio, 105. And the difficulty is not reached by the act "to give additional security to land titles," before referred to, as its provisions apply only to deeds and conveyances to be executed subsequent to its passage; and the mortgage here sought to be reformed was executed prior to that time.

Judgment reversed, and case remanded for further proceedings.

BARTLEY, C. J., and SWAN, BOWEN, and SCOTT, JJ., concurred.

467]

*JOHN BROWN v. WM. BROWN ET AL.

In error to the common pleas of Monroe county.

BRINKERHOFF, J. This case presents, substantially, the same questions as the case of Davenport v. The Widow and Heirs of Sovil, decided at this term, and is in effect decided by it.

Judgment reversed and cause remanded for further proceedings.

Patton v. The State.

JOHN PATTON v. THE STATE OF OHIO.

The acts and declarations of a conspirator may, after sufficient proof of conspiracy, be given in evidence to charge his fellow-conspirator, but subject always to the limitation that the acts and declarations admitted be those only which were made and done during the pendency of the criminal enterprise, and in furtherance of the common object.

Where the declarations are merely a narrative of a past occurrence, they can not be received as evidence of such occurrence. They must be concomitant with the principal act, and connected with it, so as to constitute a part of the res gesta.

IN error to the court of common pleas of Hamilton county.

The plaintiff in error was indicted for, and convicted of, misconduct in office, as one of the commissioners of Hamilton county.

The indictment charges, in substance, that he combined with one Samuel B. Arnold to cheat the county, and by falsely representing to one of his associates in office (Marine Ruffner), that it was imperatively necessary to rebuild a *bridge across Lick Run, in [468 that county, immediately, and that the building of such bridge was worth $700, induced his associate to join with him in executing a written contract with Arnold (who, it is charged, applied therefor at the instance of the accused), to rebuild the bridge for that sum; whereas, in fact, it was not necessary to rebuild the bridge in question, nor, even if necessary, was it worth more than the sum of $140, all which the accused well knew; and that, in so fraudulently obtaining the signature of his associate, Ruffner, to the contract with Arnold, and in signing it himself, he was guilty of corrupt misconduct in office.

The bill of exceptions is very voluminous, containing all the evidence, and numerous errors are assigned; but the view taken of the case by the court, renders it necessary to state only that it appears from the bill of exceptions, that Arnold built the bridge, and after it was finished, received from Patton and Ruffner an order for the stipulated sum of $700, and on the same day obtained the money at the Central Bank; that upon the trial in the court below, after the state had rested, Arnold, having been called as a witness for the defense, was asked, upon cross-examination, whether he had not, on the day the money was paid to him, made to one Charles Hilts, at the office of the latter, certain specified declarations as to Patton,