STONE, J. —
Tbe mortgage to George, on tbe lands in controversy, was executed December 5th, 1868. Tbe debt it was made to secure bad been long due. George does not, therefore, occupy tbe position of a purchaser, which, even if without notice, would give him a paramount right over older equities. In fact, there is no question of bona fide purchaser presented by this record. — See Wells v. Morrow, 38 Ala. 125.
On tbe 5th day of November, 1860, Caldwell made and executed a mortgage on lands to Patrick, Irwin & Co., to secure a large debt, also past due. We do not doubt the bona fides of either of tbe debts; that to Patrick, Irwin & Co., or that to George ; although, according to the testimony, there must have entered into tbe latter a large amount of usurious interest. This, however, is not made a question in this cause. The bill charges that tbe mortgage and sale to George were intended to delay, hinder, and defraud tbe creditors of Caldwell. This is denied, and tbe charge is not sustained by tbe evidence, although some suspicious circumstances are shown. The real gravamen of the present bill lies in the averment, that there was a mistake in the mortgage to Patrick, Irwin & Co., in this, that it conveys to them three hundred and twenty acres of land not intended to be conveyed, and leaves out lands that were intended to be conveyed. It so happens that no person who partici[521]*521pated in tbe preparation and execution of tbe mortgage, except Oaldwell, tbe mortgagor, was living when tbe error or mistake in tbe mortgage was discovered. Tbe prayer of tbe bill was for a reformation of the mortgage ; and a sworn answer was required from tbe defendants, one of whom was Oaldwell, tbe mortgagor. Tbe answer and testimony of Oaldwell deny that be made any mistake in the mortgage, or that be intended to mortgage any lands other than those expressed in tbe mortgage.
2. Before entering on tbe discussion of tbe testimony, we feel it to be our duty to say, that what is alleged to have been said by Caldwell at the sale under tbe Patrick, Irwin & Oo. mortgage, December 14th, 1868, testified to by tbe witnesses Davidson, Alexander, and McNeill, occurred after tbe amended mortgage was made to George — December 5th, 1868; and such declarations, although provable against Oald-well, are not evidence against George. Tbe declarations, proved by McNeill and Wolfe to have been made by Caldwell on the 24th September, 1868, rest on a different principle. Oaldwell then held tbe title to tbe land, and what be then said is competent evidence, and affects George, who after-wards acquired bis title from him. — 1 Brick. Dig. 834, § 433.
As we have said before, tbe only person who participated in tbe preparation and execution of tbe mortgage to Patrick, Irwin & Co., and who knew what lands were intended to be therein conveyed, who was living at tbe time tbe present litigation was commenced, is Caldwell, tbe mortgagor. Patrick, Irwin & Co. bad no agency in tbe negotiation, and, hence, have no personal knowledge on tbe subject. They intrusted tbe claim to Beck & Thompson, attorneys, resident in tbe county with Oaldwell, that they might obtain security for its payment. Negotiations between Beck & Thompson and Oaldwell resulted in tbe draught by tbe former, and tbe execution by tbe latter, of tbe mortgage bearing date November 5th, 1860. Both Beck and Thompson died before tbe present controversy arose.
On tbe 5th November, 1860, Oaldwell owned, near Alien-ton, Wilcox county, a plantation comprising about eleven hundred and forty acres, in one connected body. Tbe lands lie in sections 1 and 2, and in the north halves of 11 and 12. His lands in sections 11 and 12 are tbe east half of northeast quarter of section 11, and the northwest quarter and west half of northeast quarter of section 12. He owned no lands in tbe south half of either of said last named sections. Pie owned the west half of section 1, less twenty acres in tbe northwest corner; and be owned all of section 2, except tbe north half of tbe northwest quarter, tbe northwest quarter [522]*522of the northeast quarter, and twenty acres off the south part of the southwest quarter. "We append a diagram of the lands. Those marked P. I. & Co. are the lands described in the mortgage of 5th November, 1860, to them. Those marked * are lands to which Caldwell claimed no title or interest. Those marked G. 1, are lands described in the mortgage to George, of February 14th, 1861. Those marked G. 2, are lands conveyed in the mortgage to George, of December 5th, 1868.
It is thus shown that these three hundred and forty of the eight hundred acres conveyed by Caldwell to Patrick, Irwin A Co., and the entire three hundred and twenty, acres conveyed to George on 14th February, 1861, were lands to which Caldwell had no claim whatever.
3. When parties to a contract fail, by mistake, to express any material term of the contract they have mutually agreed to make, chancery will reform the contract, and make it express what the contracting parties mutually intended. But the courts will not interfere, unless the mistake is shown by clear and satisfactory proof. If uncertain in any material respect, it will be held insufficient; and while the courts [523]*523may feel that great wrong has been done, they can grant no relief by reason of the uncertainty. — Lockhart v. Cameron, 29 Ala. 355; Humbly v. Stainton, 24 Ala. 712; Hair v. La Brouse, 10 Ala. 548; Hogan v. Smith, 16 Ala. 600.
4. The bill in the present case prayed and obtained a discovery on oath from defendant Caldwell. He was also examined as a witness for himself and defendant George. It is not our intention to comment at length on his answer and testimony. Some features of them stand out saliently, and we feel it our duty to notice them. He shows clearly that it was not his intention to convey by mortgage, either to Patrick, Irwin & Co., or to George, any lands of which he was not the owner. "We are convinced that, when he made the first two mortgages, his purposes were sincere. He conveyed, in November, 1860, to Patrick, Irwin & Co., three hundred and twenty acres of land in the south halves of sections 11 and 12, to which he neither then asserted, nor now asserts any claim. Three months later, he mortgaged these identical three hundred and twenty acres of land to George. He impliedly admits that he furnished to George the numbers, by which the latter was governed in drawing his mortgage. The first mortgage to George contains no other lands than these. The mortgage to Patrick, Irwin & Co. expresses the quantity conveyed at about eight hundred acres ; and the power of sale executed by Caldwell in September, 1868, to the then holders of the mortgage, calls for the like quantity of eight hundred acres. Of the lands described in this mortgage, Caldwell owned and claimed only some four hundred and sixty, or four hundred and seventy acres. He admits there was a mistake in the first mortgage to George, and that lands are inserted therein which he did not intend to insert; but he does not state what lands he did intend to convey to him in the first mortgage.
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STONE, J. —
Tbe mortgage to George, on tbe lands in controversy, was executed December 5th, 1868. Tbe debt it was made to secure bad been long due. George does not, therefore, occupy tbe position of a purchaser, which, even if without notice, would give him a paramount right over older equities. In fact, there is no question of bona fide purchaser presented by this record. — See Wells v. Morrow, 38 Ala. 125.
On tbe 5th day of November, 1860, Caldwell made and executed a mortgage on lands to Patrick, Irwin & Co., to secure a large debt, also past due. We do not doubt the bona fides of either of tbe debts; that to Patrick, Irwin & Co., or that to George ; although, according to the testimony, there must have entered into tbe latter a large amount of usurious interest. This, however, is not made a question in this cause. The bill charges that tbe mortgage and sale to George were intended to delay, hinder, and defraud tbe creditors of Caldwell. This is denied, and tbe charge is not sustained by tbe evidence, although some suspicious circumstances are shown. The real gravamen of the present bill lies in the averment, that there was a mistake in the mortgage to Patrick, Irwin & Co., in this, that it conveys to them three hundred and twenty acres of land not intended to be conveyed, and leaves out lands that were intended to be conveyed. It so happens that no person who partici[521]*521pated in tbe preparation and execution of tbe mortgage, except Oaldwell, tbe mortgagor, was living when tbe error or mistake in tbe mortgage was discovered. Tbe prayer of tbe bill was for a reformation of the mortgage ; and a sworn answer was required from tbe defendants, one of whom was Oaldwell, tbe mortgagor. Tbe answer and testimony of Oaldwell deny that be made any mistake in the mortgage, or that be intended to mortgage any lands other than those expressed in tbe mortgage.
2. Before entering on tbe discussion of tbe testimony, we feel it to be our duty to say, that what is alleged to have been said by Caldwell at the sale under tbe Patrick, Irwin & Oo. mortgage, December 14th, 1868, testified to by tbe witnesses Davidson, Alexander, and McNeill, occurred after tbe amended mortgage was made to George — December 5th, 1868; and such declarations, although provable against Oald-well, are not evidence against George. Tbe declarations, proved by McNeill and Wolfe to have been made by Caldwell on the 24th September, 1868, rest on a different principle. Oaldwell then held tbe title to tbe land, and what be then said is competent evidence, and affects George, who after-wards acquired bis title from him. — 1 Brick. Dig. 834, § 433.
As we have said before, tbe only person who participated in tbe preparation and execution of tbe mortgage to Patrick, Irwin & Co., and who knew what lands were intended to be therein conveyed, who was living at tbe time tbe present litigation was commenced, is Caldwell, tbe mortgagor. Patrick, Irwin & Co. bad no agency in tbe negotiation, and, hence, have no personal knowledge on tbe subject. They intrusted tbe claim to Beck & Thompson, attorneys, resident in tbe county with Oaldwell, that they might obtain security for its payment. Negotiations between Beck & Thompson and Oaldwell resulted in tbe draught by tbe former, and tbe execution by tbe latter, of tbe mortgage bearing date November 5th, 1860. Both Beck and Thompson died before tbe present controversy arose.
On tbe 5th November, 1860, Oaldwell owned, near Alien-ton, Wilcox county, a plantation comprising about eleven hundred and forty acres, in one connected body. Tbe lands lie in sections 1 and 2, and in the north halves of 11 and 12. His lands in sections 11 and 12 are tbe east half of northeast quarter of section 11, and the northwest quarter and west half of northeast quarter of section 12. He owned no lands in tbe south half of either of said last named sections. Pie owned the west half of section 1, less twenty acres in tbe northwest corner; and be owned all of section 2, except tbe north half of tbe northwest quarter, tbe northwest quarter [522]*522of the northeast quarter, and twenty acres off the south part of the southwest quarter. "We append a diagram of the lands. Those marked P. I. & Co. are the lands described in the mortgage of 5th November, 1860, to them. Those marked * are lands to which Caldwell claimed no title or interest. Those marked G. 1, are lands described in the mortgage to George, of February 14th, 1861. Those marked G. 2, are lands conveyed in the mortgage to George, of December 5th, 1868.
It is thus shown that these three hundred and forty of the eight hundred acres conveyed by Caldwell to Patrick, Irwin A Co., and the entire three hundred and twenty, acres conveyed to George on 14th February, 1861, were lands to which Caldwell had no claim whatever.
3. When parties to a contract fail, by mistake, to express any material term of the contract they have mutually agreed to make, chancery will reform the contract, and make it express what the contracting parties mutually intended. But the courts will not interfere, unless the mistake is shown by clear and satisfactory proof. If uncertain in any material respect, it will be held insufficient; and while the courts [523]*523may feel that great wrong has been done, they can grant no relief by reason of the uncertainty. — Lockhart v. Cameron, 29 Ala. 355; Humbly v. Stainton, 24 Ala. 712; Hair v. La Brouse, 10 Ala. 548; Hogan v. Smith, 16 Ala. 600.
4. The bill in the present case prayed and obtained a discovery on oath from defendant Caldwell. He was also examined as a witness for himself and defendant George. It is not our intention to comment at length on his answer and testimony. Some features of them stand out saliently, and we feel it our duty to notice them. He shows clearly that it was not his intention to convey by mortgage, either to Patrick, Irwin & Co., or to George, any lands of which he was not the owner. "We are convinced that, when he made the first two mortgages, his purposes were sincere. He conveyed, in November, 1860, to Patrick, Irwin & Co., three hundred and twenty acres of land in the south halves of sections 11 and 12, to which he neither then asserted, nor now asserts any claim. Three months later, he mortgaged these identical three hundred and twenty acres of land to George. He impliedly admits that he furnished to George the numbers, by which the latter was governed in drawing his mortgage. The first mortgage to George contains no other lands than these. The mortgage to Patrick, Irwin & Co. expresses the quantity conveyed at about eight hundred acres ; and the power of sale executed by Caldwell in September, 1868, to the then holders of the mortgage, calls for the like quantity of eight hundred acres. Of the lands described in this mortgage, Caldwell owned and claimed only some four hundred and sixty, or four hundred and seventy acres. He admits there was a mistake in the first mortgage to George, and that lands are inserted therein which he did not intend to insert; but he does not state what lands he did intend to convey to him in the first mortgage. In the second, or what is called the corrected mortgage to George, there is embraced about double the quantity that is expressed in the original mortgage to him, and the lands are entirely different; yet, notwithstanding the well-established facts, that Caldwell attempted to convey to Patrick, Irwin & Co. eight hundred acres of land owned by him, and did not intend to convey any lands not owned by him ; that he actually conveyed to them only four hundred and sixty, or four hundred and seventy acres of land, of which he was the owner,and, in the same instrument, conveyed to them three hundred and forty acres to which he asserted no claim ; that three months afterwards, in executing a mortgage to George, there was inserted in it, on information that must have been furnished by him, the identical three hundred and twenty [524]*524acres of land, to wbicb be set up no claim, which had been expressed in the mortgage to Patrick, Irwin & Oo., and that the insertion of these numbers in the mortgage to George was by mistake; still he denies, and reiterates the denial time and again, that he made any mistake in the execution of the mortgage to Patrick, Irwin & Co. He goes much further than this, and testifies as follows: “ I did not intend to convey by mortgage to Patrick, Irwin & Co. any lands that I afterwards mortgaged to John H. George. * * The lands belonging to me, mentioned in the mortgage to Patrick, Irwin & Co., were the only lands that I intended to mortgage to Patrick, Irwin & Co., that belonged to me.” The second mortgage to George conveyed to him all the lands Caldwell owned at either of the dates, except the four hundred and sixty or four hundred and seventy acres previously conveyed by him to Patrick, Irwin & Co. We suppose this seeming discrepancy is sought to be reconciled on the hypothesis, stated by him, that he furnished to Beck & Thompson the means of learning the numbers of his lands; that they inserted the numbers in the mortgage; that he, Caldwell, having confidence in them, executed the mortgage without hearing it read; and that if any mistake was made, it was the mistake of Beck & Thompson. This excuse is too narrow and technical. We are clearly convinced that Caldwell intended to convey about eight hundred acres of the plantation owned by him'; that for about eight years he believed he had so conveyed that quantity of his own land, when, in truth and in fact, he had conveyed only four hundred and sixty or four hundred and seventy acres of such plantation. This, on this most favorable view for Caldwell and George, was a mistake by Caldwell in the execution of the mortgage, clearly shown by the proof.
A second question, equally important with the one above discussed, here presents itself: What lands did the contracting parties intend to convey, instead of those, not owned by Caldwell, which were inserted in the mortgage ? The bill avers that the intention was to mortgage the whole plantation. The answers deny this. We have scrutinized the testimony closely, and we cannot find that this averment is clearly proved. On the contrary, we think the intention was to convey only eight hundred acres, or about that quantity. And of the six hundred and sixty acres then owned by Caldwell and not conveyed, what part was intended to be conveyed ? The testimony entirely fails to inform us. Two clues are given in the record : First, the statement by Caldwell, when McNeill and Wolfe visited him, in September, 1868, that he had conveyed only eight hundred of the eleven [525]*525hundred acres, because his title to three hundred was not at the time perfected. Second, the lands then shown and pointed to, by Caldwell, in his interview with them, as being the lands conveyed in the mortgage. Taking these data as a starting point, it is possible the correct numbers could have been ascertained and identified. There is nothing in the •record to enable us to do so ; and the result is, this suit must fail on that account.
The decree of the chancellor is affirmed.