Dameron v. Rowland Lumber Co.

163 N.C. 278

Opinion

Allen, J.,

after stating tbe case: When tbis ease was bere on a former appeal (Dameron v. Lumber Co., 161 N. C., 498) tbe Court ordered a new trial, and said: “As tbis case is to be tried again, we will repeat, wbat bas been often decided, tbat a deed cannot be corrected or reformed because of tbe mistake of one of tbe parties to it, but only when tbe mistake is mutual, tbat is, tbe mistake of botb parties, or else upon tbe mistake of one party brought about by tbe fraud of tbe other,” and on tbe new trial tbe plaintiffs abandoned all allegations of fraud, and relied solely on tbe allegation of mutual mistake in tbe execution of tbe extension deed.

We find no evidence of a mistake on tbe part of tbe defendant, and it is doubtful if there is any evidence of mistake on tbe part of tbe plaintiffs justifying tbe intervention of a court of equity, as one of them, and tbe only one who was a witness, testified tbat be could read and write; tbat tbe deed was prepared by bis attorney; tbat be read a part of it, and tbat “on bis (defendant) paying me the $500 tbat day, I just simply extended the time for three years on the timber in the original deed.’’

We are, therefore, of opinion tbat 'bis Honor properly entered judgment of nonsuit, as there is no evidence of mutual mistake.

Affirmed.