Breese, J.
John B. Hunter, as administrator of Samuel W. Hunter, deceased, brought his action in the Circuit Court of Bond county, against Wesley A. and Finis Bilyeu, on a note executed by them to the intestate, dated March 30, 1850, and due March 30, 1855. Pending the action the defendants obtained an injunction on their bill of complaint, to which the administrator, and the heirs-at-law of the intestate, who were minors, and their guardian, together with Joseph Smith, were made defendants.
The bill alleges, that the note sued upon, together with others which were paid, was one and the last of a number of notes they had executed to the intestate, for certain lands lying in Bond county, for which a bond for a deed was executed and delivered to them by the intestate. That they were put into possession of the lands, and made lasting and valuable improvements on some of the tracts, but have discovered that one or more tracts, which they supposed they had bought, were not included in the bond. One of those tracts is described as “ the old field tract ” lying south-east of Shoal creek, and being part of the west half of the northwest quarter of Section twenty-three, in Town five north, Range four west, containing forty and nineteen-hundredths acres; and the other, the “ Gillespie tract,” being the last half of the north-west quarter of the north-east quarter of the same section, township and range, containing twenty acres; the undivided half of both which tracts, the complainants allege, was purchased by them of the intestate, and was to have been included in the title bond, but by mistake was left •out, and these tracts subsequently sold by the intestate to .Joseph Smith.
The bill also alleges, that some time anterior to the commencement of this suit on the note, the administrator had ¡filed a petition in the Circuit Court, at the September term, 1855, praying the court for an order to authorize him to make ,a deed to complainants for the land described in the bond; .that tills petition contained the same errors and mistakes as ¡are now complained of, with another error superadded in describing the lands as being in Section “ twenty-five.” The complainants admit they were made defendants, and had due notice .of the pending of the petition, but they did not appear .to defend, supposing the lands were described as in the bond, ¡and their being made defendants was a mere ceremony, and .the proceedings consistent, with their rights. That these errors and mistakes were carried into the decree rendered on this petition, and in the deed which the administrator tendered to them, and by them refused. No exhibit is made of these proceedings or of this deed.
The title bond is alleged to have been written by the intestate, and delivered to the complainants and accepted by them without any objection, on the 30th of March, 1850. In the following year, 1851, the intestate left the State, and in 1852 died, leaving these infant defendants his only heirs-at-law.
The prayer of the bill is, that the court would order and direct the defendants to convey to complainants all of the land agreed to be conveyed to them by the intestate, and to annul and hold for naught the order of the Circuit Court in behalf of the administrator, or to amend and correct the decree so as to comport with justice and good conscience, and perpetually enjoin the collection of the note sued on, until they are able to comply with the understanding of Samuel W. Hunter, the intestate.
The bond is made an exhibit, and describes the lands sold, and to be conveyed on payment of the purchase money. They are, “ the undivided half of a certain lot, beginning at the south corner of the south-west quarter of Section 14, Town 5 north, of Range 4 west of the third principal meridian; thence running north fifty poles; thence west to the middle of the channel of Shoal creek; thence down the channel of Shoal creek, to the section line ; thence east to the beginning corner, containing thirty-eight acres, more or less. Also, the undivided half of so much of the west half of the north-west quarter of Section 53, Town 5 north, Range ‘4 west of the third principal meridian, lying on the west side of Shoal creek. Also, twenty poles south from the creek on the east line of said half ; thence west to said creek; thence up said creek to the beginning. Also, the undivided half of twelve acres, more or less, of the south-west quarter, Town 4 west of the third principal meridian, commencing at the south-west corner of said section ; thence north fifty ; thence east to the middle of the channel of Shoal creek; thence down said creek to the section line; thence west to the beginning. Also, two acres and a half of the west half of the north-west quarter of Section 23, in same Township and Range, commencing at a stake on the east line of said land at the south-east corner of the mile post; thence south twenty poles ; thence west twenty poles ; thence north twenty poles; thence east twenty poles, to the beginning.” This last tract was in a separate bond to Finis Bilyeu, one of the complainants, made at the same time and on the same conditions, as the bond to complainants jointly, and for convenience, no question being made on it, both bonds are considered as one.
There is a slight apparent ambiguity in the description of the undivided half of twelve acres, which is explained by the' plat sworn to by the witnesses, and is the tract on the west side of the creek, contained within the north and south lines of the tract of thirty-eight acres, if extended west to the section line. There is no dispute about this tract. The tract described as “ also twenty poles south from the creek on the east line of said half; thence west to said creek; thence up said creek to the beginning,” is understood to describe the mill yard, having the shape of a rectangular triangle, the south line being the perpendicular, the west line the base, and the creek the hypothenuse. About this tract there is no dispute.
The administrator demurred to the bill, which was after-wards withdrawn, and his answer filed, not admitting the mistake alleged, to which there was a replication. At a subsequent term, he also filed a plea of the statute of frauds and perjuries. Smith also answered, denying any knowledge when he purchased, of any sale of the tract south-east of Shoal creek, in section twenty-three. On the hearing, the bill was dismissed as to him.
Much testimony was introduced on behalf of complainants, for the purpose of showing by the declarations of the intestate, that an undivided half of other tracts besides these, namely, the tracts known as the “ old field ” tract, sold to Smith, and the “ Gillespie ” tract, were bargained for and sold, but, for some cause not fully explained, omitted from the title bond.
The lasting and valuable improvements were made by complainants on other parts, about which there is no dispute.
The bill is, in effect, a bill to reform by parol, this title bond by incorporating into it the part lying south-east of the creek, called the “old field” tract, and the “Gillespie” tract, and when reformed, to decree a specific performance. The contract must be reformed before such a decree can pass.
This presents a question which has been much discussed in the courts of this country and of England, and on which there is great contrariety of opinion.
The question is, in a bill to reform a written instrument, in the absence of any allegation or proof of fraud, and on the ground of accident and mistake alone, is parol evidence admissible to prove an agreement to do something further than is contained in the writing, the statute of frauds and perjuries being relied on in the defense, and which that statute requires to be proved by writing ?
Whilst in England, the weight of adjudications seems to be opposed to the admission of parol evidence, in this country, it appears to be the other way. One of the leading cases in England, is that of Woollam, v. Hearn, J Vesey, 211. It is prominent among the Leading Cases of White and Tudor, part 1, vol. 2, with copious notes by Hare & Wallace, 510.
In this case, the bill filed by Wm. Woollam against Hearn, stated that the rent of seventy-three pounds ten shillings was inserted in the written-lease by mistake, or with some unfair view; the real agreement being that the plaintiff was to have the lease upon the same rent as the defendant paid to his lessor, and that he did not pay more than sixty pounds. The prayer was for a specific performance, and that the defendant may be decreed to execute a lease according to the agreement, at the rent of sixty pounds, or such other rent as the defendant paid his lessor. The defendant, in his answer, denied that seventy-three pounds ten shillings was inserted by mistake, or with any unfair view; or that the agreement was that the plaintiff should pay the same rent as the defendant paid, which he admitted was sixty-three pounds. The bill was proved by depositions.
Sir Wm. Grant, Master of the Rolls, said: “By the rule of law, independent of the statute (of frauds and perjuries), parol evidence cannot be received to contradict a written agreement. To admit it, for the purpose of proving that the written instrument does not contain the real agreement, would be the same as receiving it for every purpose. It was for the purpose of shutting out that inquiry, that the rule of law was adopted.
“When equity is called upon to exercise its peculiar jurisdiction by decreeing a specific performance, the party to be charged is let in to show, that, under the circumstances, the plaintiff is not entitled to have the agreement specifically performed; and there are many cases in which parol evidence of such circumstances has been admitted, as in Buxton v. Lister, 3 Atkins, 383. There, on the face of the instrument, a specific sum was to be given for the timbers, but it was shown, by parol, that the defendants were induced to give that,- upon the representation that it was valued by two timber merchants, which was not true. If this had been a bill brought by this defendant for a specific performance, I should have been bound by the decisions to admit the parol evidence, and to refuse a specific performance. But this evidence is offered, not for the purpose of resisting, but of obtaining a decree, first, to falsify the written agreement, and then to substitute in its'place a parol agreement to be executed by the court. There is no case in which the court has gone the length now desired. The evidence offered is to vary an agreement in a material part, and, having varied it, to procure it to be executed in another form. There is nothing to show that ought to be done; and my opinion being that it ought not, I must dismiss the bill.”
In the case of Rogers v. Earl, 1 Dickson, 294, which was a bill to rectify a mistake of the solicitor in drawing a marriage settlement; in Thomas v. Davis, id. 301, to rectify a mistake in a conveyance by the omission of one of the parcels of land intended to be conveyed; in Sims v. Urry, 1 Ch. Cases, 225, to prove a mistake in the penal sum of a bond, by writing it forty instead of four hundred pounds,—verbal evidence was admitted.
In Hardwood v. Wallace, cited in Targus v. Puget, 2 Vesey, Sen. 195, where it was proposed to prove a mistake in drawing a settlement; and in the Attorney General v. Sitwell, 1 Younge & Collier, 559, etc., where it was proposed to show, by parol, that in a contract with the crown for the sale of a certain manor, with the appurtenances, the advowson was omitted by mistake,—such evidence was rejected, or deemed inadmissible. In this case Baron Alderson said: “ I cannot help feeling that in the case of an executory agreement, first to reform and then to decree an execution of it, would be, virtually, to repeal the statute of frauds.”
In cases within the statute of frauds, verbal evidence was held inadmissible, as in Dwight v. Pomeroy, 17 Mass. R. 303, where the plaintiff, being creditor of an insolvent debtor who had executed a deed of assignment in trust, for the benefit of his creditors, filed his bill against the trustees to reform an alleged mistake in the trusts expressed in the deed. And in Elder v. Elder, 10 Maine, 80, where the written agreement was for the conveyance of a lot of land in Windham, formerly owned by J. E., and the plaintiff proposed to prove by parol that it was intended to include the adjoining land in West-brook, under the same ownership, but that this was omitted by mistake. In Osborn v. Phelps, 19 Conn. 63, an agreement for the sale of land was drawn in two separate instruments, one to be signed by the vendor, and the other by the purchaser, and neither of the instruments contained any reference to the other, but each was signed by the wrong party by mistake. This the plaintiff' sought to prove by parol evidence, but the court held it inadmissible.
In other American cases, such evidence has been held admissible. In Gillespie v. Moon, 2 Johns. Ch. R. 585, which was a bill for relief and for the reconveyance of a grant of land, which had been included by mistake or fraud in a deed of conveyance, verbal evidence of the mistake, on a review of all the cases, was admitted, and a reconveyance decreed. In Tilton v. Tilton, 9 New Hamp. 385, where tenants in common agreed to make partition pursuant to a verbal award, and executed deeds accordingly; but, in the deed to the plaintiff, a parcel assigned to him was omitted by mistake; in a bill for relief, verbal evidence was held admissible, and relief thereupon decreed. So in Langdon v. Keith, 9 Venn. 299, where upon the transfer of a part of several promissory notes, secured by mortgage, an assignment of the mortgagee’s entire interest in the mortgage was made, by mistake, instead of a part, relief was decreed upon verbal proof. In De Riemer v. Cantillon, 4 Johns. Ch. R. 85, where a portion of the land purchased at sheriff’s sale was by mistake omitted in his deed to the purchaser, upon parol evidence of the fact the judgment debtors were decreed to convey to the purchaser the omitted parcel. Several other cases are referred to in this note.
It does not appear that the statute of frauds and perjuries was pleaded in any of these cases, though referred to in the argument, and in the opinion of the court.
In Woollam v, Hearn, and in many of the cases referred to in Hare and Williams’ notes to that case, a distinction is made between seeking and resisting specific performance, as to the admission of evidence. It is said, though a defendant resisting a specific performance, may go into parol evidence to show that by fraud the written agreement does not express the real terms, a plaintiff cannot do so for the purpose of reforming the agreement and obtaining a specific performance of it as reformed.
This doctrine is critically examined in Gillespie v. Moon, 2 Johns. Ch. R. 585, before cited. In that case the bill was filed to rectify a mistake in the conveyance which, by an error in the description of the land, conveyed the whole lot, or two hundred and fifty acres, instead of two hundred acres, parcel of the same.
The mistake is positively denied in the answer, and the point was, is parol proof of this mistake admissible, in opposition to the plain language of the deed, and especially in opposition to the defendant’s answer ?
It will be seen the statute of frauds and perjuries was not set up in the case.
After entering minutely into the parol proof of the fact of the mistake, Chancellor Kent says : “The rule in courts of law. is, that the written instrument does, in contemplation of law, contain the true agreement of the parties, and that the writing furnishes better evidence of the sense of the parties, than any that can be supplied by parol. But equity has a broader jurisdiction, and will open the written contract to let in an equity arising from facts perfectly distinct from the sense and construction of the instrument itself. I have looked into most if not all the cases on this branch of equity jurisdiction, and it appears to me to be established on great and essential grounds of justice, that relief can be had against any deed or contract in writing, founded in mistake or fraud. The mistake may be shown by parol proof, and the relief granted to the injured party, whether he sets up the mistake affirmatively by bill, or as a defense.”
After reviewing many of the decisions on this question, the chancellor decides that parol proof was admissible, and that it established the mistake as charged in the. bill.
It will be observed, the contract in this case was an executed contract, a deed of conveyance having been made ; there was no prayer for a specific performance of a contract, but to correct a mistake in the deed. The chancellor remarks, “ Whether such proof be admissible on the part of a plaintiff, who seeks a specific performance of an agreement in writing, and at the same time seeks to vary it by parol proof, has been made a question. Lord Hardwicke, in Jacques v. Statham, 3 Atkins, 388, seemed to think it might be done, but such proof was rejected in Woollam v. Hearn, 7 Vesey, 211, (which we have cited at length); and in Higginson v. Clowes, 15 Vesey, 516; and when Lord Redesdale said, in Clinan v. Cooke, 1 Schoales and Lefroy, 39, that he could find no decision in which a plaintiff had been permitted to show an omission in a written agreement, by mistake or fraud, he must be understood to refer to the cases of bills for a specific performance of an agreement, which was the case then before him.”
This case would seem to decide nothing more than this, that in a bill to correct a mistake in an executed contract, parol proof of the mistake is admissible, and that such proof is as available for one party, or for one purpose, as for another—as available for the plaintiff in setting up a claim, as for the defendant in resisting it. It is nowhere said, that a bill to reform an executory contract, and then decree a specific performance when reformed, against a denial, in the answer, of any mistake, and the plea of the statute of frauds and perjuries, can be sustained by parol evidence.
This decision, so far as it goes, has been followed by the courts of many other States. The cases are referred to by Hare and Wallace, on pages 539, 540, but in none of them was the denial in the answer accompanied by a plea of the statute of frauds and perjuries. Nor do these cases go farther than to assert the genuine principle, that independent of this statute, where it is not set up as a defense, parol evidence will be received to correct an alleged mistake in a written executed contract, when asserted by a plaintiff, and is as available for him, as for a defendant.
The cases go to the extent of declaring, that parol evidence shall be admissible to correct a writing as well for a plaintiff as against him, thus establishing mutuality and equality in the operation of the doctrine.
In 1 Story’s Eq. Juris., sec. 161, in commenting on the distinction set up, the learned author says, in a note, that it is of a very artificial character, and difficult to be reconciled with the general principles of courts of. equity. He says, “ the ground is very clear, that a court of equity ought not to enforce a contract, when there is a mistake, against the defendant insisting upon and establishing the mistake ; for it would be inequitable and uneonscientious. And if the mistake is vital to the contract, there is a like clear ground, why equity should interfere at the instance of the party as plaintiff, and cancel it; and if the mistake is partial only, why, at his instance, it should reform it. In these cases, the remedial practice is equal; and the parol evidence to establish it, is equally open to both parties to use as proof. Why should not the party aggrieved by a mistake in an agreement, have relief in all cases when he is plaintiff, as well as when he is defendant? If the doctrine be founded upon the impropriety of admitting parol evidence to contradict a written agreement, that rule is not more broken in upon by the admission of it for the plaintiff than it is by the admission of it for the defendant. If the doctrine had been confined to cases arising under the statute of frauds, it would, if not more intelligible, at least have been less inconvenient in practice.”
In a subsequent case, Keisselbrack v. Livingston, 4 Johns. Ch. R. 145, whiclvwas a bill for the specific performance of an agreement in writing to execute a lease for lives “ containing the usual clauses, restrictions and reservations contained in the leases given by the defendant,” the bill stated that a lease was offered, containing a provision that upon every sale of the demised premises, one-fifth of the purchase or consideration money should be taken by the defendant to his own use, which complainant refused to receive, alleging, that at the time of the execution of the writing, it was agreed no such quarter or fifth sales should be demanded or paid.
The defendant did not, in direct and clear terms, deny any such agreement, but denied any other or different contract than the one set forth made in writing, and as to the validity of the supposed verbal agreement, he pleaded the statute of frauds.
The point in the case was, whether this verbal agreement could be established by parol. The learned chancellor says, it did not appear to him, that the statute of frauds had any bearing on the case. “ The agreement for the three life lease is in writing, and it has been partly performed, by possession taken and transferred, and rent paid. The right of the plaintiff rests upon the contract in writing, and the only inquiry is, whether there is not a mistake in the generality of the expression, that the lease was to contain the 1 usual clauses,’ etc., and whether the parties did not intend an exception in respect to the quarter sales. There is no doubt of their declared intention to make such an exception at the time the agreement was drawn; and I am inclined to think that the writing is, and ought to be, susceptible of amendment and correction in that particular.”
The proof was admitted, and the mistake corrected, partly upon the ground, that the writing itself let in parol proof, to show which were “ the usual clauses,” etc.,, and such proof being let in by the contract itself, it might, on the principle of the agreement itself, be applied to correct any mistake manifestly shown to exist, in the general and unqualified terms of that part of the written agreement which depended for its explanation upon external proof.
This court has held, as á general proposition, that the terms of a written agreement cannot be changed by parol. Baker v. Whiteside, Breese (old ed.), 132; Penny v. Graves, 12 Ill. 298. And so it is held by all courts. At the same time, we have said, that whatever covenants an absolute deed may contain, parol evidence may be admitted to show that it was intended as a mortgage, or mere security for the payment" of the debt, and the grantor can have relief in equity, and this, where mistake is not alleged. Purviance et al. v. Holt, 3 Gilm. 405; Ferguson v. Sutphen, id. 547. And it "is also held, in Harlow v. Boswell, 15 Ill. 57, where parties commit their contracts to writing, this forms the only evidence of its terms.
In Scott, Adm'r, v. Bennet, 3 Gilm. 254, this court said, it is a familiar principle that you may give evidence "to explain, but not to vary, add to, or alter a written contract. Courts cannot make a new contract for the parties. But if there is doubt and uncertainty, not about what the substance of the contract is, but as to" its particular' application, it may be explained, and properly’directed.
As a general principle, where a contract is reduced to writing, the writing, affords the only evidence of the terms and conditions of the contract; all antecedent and contempora-’ neons verbal agreements are merged in the written contract.
There is an apparent contradiction in these several opinions, but we think a few familiar considerations will serve to reconcile them, or show that it is not real. The subjects peculiarly proper for the jurisdiction of courts of equity, are well understood to be, fraud, trusts, accident and mistake, and these courts are vested with the power to afford relief in all cases, wherein, by reason of the universality and rigor of the rules of the common law, a remedy cannot otherwise he had. The power to correct a mistake in a writing, is as much within the scope of this jurisdiction, as any other mistake. The whole realm of mistake is laid open to the court, and its powers are limitless to correct, on a proper case made. That it should be dormant, when invoked to correct a mistake in a written contract, would be strange indeed. It is no answer to say, that within the rigid rule of law, the power may be exercised, but not outside of it, as that would destroy the rule. In our judgment, it has no such effect. The jurisdiction of a court of chancery to correct mistakes, is no less important to the due administration of justice, and the safety of the citizen, than the rule of the common law, that parol evidence cannot be received to add to, or vary a written contract, and in a court of equity, it must be determined, on the circumstances of each case, which shall prevail, the exercise of an unquestioned power of the court, or the rule of the common law.
The doctrine is undisputed and incontestable, that a deed, absolute on its face, may be shown, by parol, to have been intended by the parties to it, as conditional merely, and a court of equity, on proper proof, will so hold. This contract is explained by parol evidence, and if it is made to speak a language its words do not import, who will deny that it is within the competency of that court to ascertain the real contract of the parties, and then enforce it, according to the intention of the parties ? If a court of equity has not the power to correct mistakes in a deed, or other writing, on convincing proof of the existence of the alleged mistake, great injustice would be perpetrated with impunity. A man sells a vacant lot adjoining the lot on which he has a costly residence, but by the mistake of the scrivenor, the deed describes the lot of his residence. An ejectment is brought— the purchaser claiming under his deed—and if no power exists in a court of equity to correct the mistake, he must surrender that which he never sold, and the purchaser recover a property he never bought. A court of chancery should not hesitate to receive parol evidence of this mistake, and on sufficient proof, correct it, else the most flagrant injustice would be perpetrated, and an undoubted power of that court be rendered ineffectual and worthless. There can be no danger in exercising this power, since the court has before it all the facts, and if they are not convincing, the stern rule of law will prevail.
This court has, in many cases, acknowledged and exercised. this power, and we do not know that it has been questioned by the bar here or elsewhere.
The doctrine is fully recognized in the case of Broadwell v. Broadwell 1 Gilm. 599, that a court of chancery will always correct any mistakes of fact which have occurred in drawing up a papei-, when a proper case is presented and clearly proved, and then carry into effect the instrument when thus corrected. And herein is found the safeguard for those so litigating, a proper case must be presented and clearly proved. If it be clearly proved, who shall say that a court of equity transcends its powers, or violates the rule of law, in declaring the contract to be as the parties have made it % We cannot think the statute of frauds and perj uries has any application to such cases.
Here, the bill is filed to reform this contract, by inserting in it several tracts of land, alleged to have been omitted from it by mistake, and parol evidence is relied on for such purpose ; and when reformed, then the prayer is, to decree a specific performance of the contract. This proof makes the contract different from what its words import, and adds to it, and varies it very materially. It, in fact, makes a new and different contract; yet if the mistake is clearly established, which should give way, that rigid rule of the common law, or that power residing in a court of equity, to correct mistakes ? The strongest and most convincing evidence will be required, before the common law rule is postponed, and the power of the court exercised. Now, what is the testimony in this case ?
It consists, in great part, of loose conversations held by one Gillespie, and others, with the intestate, in which he said, there was a mistake in the bond ; that the tract lying southeast of Shoal creek, being part of the west half of the northwest of twenty-three was not in the bond, or not in right, and theBilyeus had found it out. This witness states nothing in positive terms, but “ thinks ” the facts were so and so, as he details them. He “ thinks ” all the lands claimed by complainants were included in the bond, except the Gillespie tract, and thinks that intestate told him some of the numbers were wrong, and some of the land was not named in the bond. He spoke of the west half of the north-west twenty-three lying south-east of Shoal creek, as not included in the bond, and that he would not rectify the mistake because they could not agree upon a division of the lands according to his understanding of the contract. This witness says that he can neither read nor write, and details only such parts of the conversation, as he “ thinks ” was had with the intestate. He does not say in positive terms, that the intestate admitted to him he had sold this tract to complainants, or that it was left out of the bond by mistake. No testimony could be more unsatisfactory than his, taking the whole of it together. Fenton says he “ thinks ” Hunter told him he drew the bond himself, and that there was a mistake in it, but does not recollect what the mistake was. He says it was his understanding a bond was given by Hunter to complainants, and notes given for the payment of the money—does not say he ever saw the bond or notes—says the complainants never took possession of the Gillespie tract—on the tract south-east of the creek, they cut some timber off, put a blacksmith shop upon, and pastured the field on it while they and Hunter were in partnership ; there was some money paid on the general contract, but don’t know how much.
Paine states that Hunter told him complainants were to have half of this tract, when he, Hunter, sold or left, according to the contract as made with complainants, in the sale of the mill, which was in 1850. He had this conversation in the winter after the sale of the mill property ; that complainants have cut and hauled saw logs, and Hunter and complainants built a blacksmith shop on this land; and “thinks” complainants repaired the fences some, but is not certain, and they used it as a pasture in connection with Hunter. Hunter also said he had sold the Gillespie tract to them, and that David Hunter was to make a deed to it. Don’t know that complainants ever exercised any acts of ownership over this tract. Hunter said there was a mistake in the bond, and if his health would permit, he was coming to town to get it fixed; “thinks” the mistake applied to the tract south-east of Shoal creek, on which there was an old field. Does not know of complainants exercising any acts of ownership over this “old field tract,” since they and Hunter dissolved partnership; don’t know the numbers of the land.
The testimony of Clouse, and of L. G. Bilyeu, does not differ, substantially, from that of other witnesses.
Smith says, Hunter told him, that all the lands the complainants wez-e to get, wez'e included in the bonds; that half of the timber on the tract lying on the south-east side of Shoal creek, on which there was an old field, was included in the contract with complainants, and that they had got their share off, and that he had not sold the land to them. Wesley Bilyeu had stated to witness that he had an interest izi this tract, and Hunter then told him as above stated. Hunter had possession of this tract when witness bought it, and had corn standing in the field on it. George Smith stated that Hunter told him that complainants had no right to the tract lying south-east of Shoal creek, but as soon as he could buy a piece from John Clouse, he would make it right, but they were to have it when he sold or left; understood this same tract was included in the original contract.
This is the substance of the evidence to prove the mistake in the bond, and part performance, which, it is very clear, is wholly insufficient for either purpose. It would be relaxing too much those salutary rules of evidence, which require a contract to be clearly proved, before a specific perfoi’mance of it will be decreed. It is discretionary with the court, in all such cases, to decree or not a specific performance of a contract, and that discretion will not be exercised except in a very clear case.
This contract was made in March, 1850, and the intestate remained in the State until 1851, during a part of which time he was in partnership with complainants, in using the mill property. They paid their notes as they became due, and not a word of complaint is heard of any mistake. They were impleaded, by the administrator of the intestate, in a petition in chancery, for the purpose of obtaining an order of court, authorizing him to make a deed to them in performance of the covenant; in which suit, it was fully competent for the complainants to have litigated all these matters, but which they neglected to do. Though these proceedings are not pleaded, or set up in bar by the defendants, they might have been, successfully, and the case thus disposed of, rendering unnecessary the examination we have been compelled to give it on the issues made.
We are satisfied nothing has been shown to establish a mistake, its nature, or extent, so clearly, as to leave no doubt on the mind of the actual existence of the alleged mistake. The decree, as to the old field tract, being a part of the west half of the north-west quarter of section twenty-three, lying north-east of Shoal creek, and as to the Gillespie tract, is reversed, and the decree so modified as to exempt those tracts from its operation. The injunction will be dissolved, and the administrator, the appellant here, will be allowed to proceed with his action at law.
Decree modified.