Tenney, C. J.
On November 24, 1840, the plaintiff conveyed to the defendant, by deed of that date, a parcel of land situated in the town of Cherryfield, and described as follows: “ Containing fifty acres, and bounded on the east by the Narraguagus river, and on the north by the farm on which Stephen O. Madden now lives; the land which is hereby conveyed is the north half part of the McKay farm, so called.”
It is stated in the bill, that the fifty acres which the plaintiff sold and conveyed to the defendant by the deed just referred to, were intended and agreed by him and the said Madden, “ to be the northerly part of the McKay farm, that is, a part of both lots numbered 62 and 80 on the plan of Lothrop Lewis;” and that after the bargain and sale of the fifty acres, one James A. Campbell, a surveyor of land, was employed by them to survey and run out the said fifty acres, according to said bargain and sale; and that said Campbell, in presence of the plaintiff and defendant, did proceed to survey and run out the said fifty acres accordingly; and in doing so he began on the front lot, at the river, and run off twenty-three rods or thereabouts in width, from the northerly part of said lot, and thence keeping this width, and calculating to run west to the head of the back lot, No. 80 on said plan, to make out said fifty acres, being one fourth part of the McKay farm or homestead, and of the two lots numbered 62 and 80, containing two hundred acres; and that the defendant was therewith, and at the time, content, and satisfied with said running, and continued so for about ten years.
And it is further stated in the plaintiff’s bill, that Caleb Burbank, who was employed to write the deed before named, by a mistalee, inserted in the description of the land intended to be conveyed, the words “half part” of the McKay farm, which would embrace one hundred instead of fifty acres. This mistake the plaintiff seeks to have rectified by a decree of this court.
[215]*215The defendant in his answer, alleges that the fifty acres, which the plaintiff conveyed to him were intended and agreed to be the north half of the McKay farm, as mentioned in his deed, but denies that it was intended and agreed by him to purchase any part of the back lot, or lot No. 80. He also denies that James A. Campbell over measured off twenty-three rods from the north line of the defendant’s lot, and thence run a line so as to embrace a parcel of land of that width, or that he assented to or acquiesced in said running, or employed said Campbell to run the same. He further denies that Burbank made any mistake, such as is alleged in the bill, in writing said deed to him, and he denies all fraud charged in the bill.
It is a well established rule of law in courts of law, that a written instrument, duly executed, contains 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 jurisdiction which is broader, and will open the written contract to let in an equity, arising from facts perfectly distinct from the construction of the instrument itself. “ It must be an essential ingredient,” says Lord Thurlow, in Shelburne v. Inchiquin, 1 Bro., ch. 338, “ to any relief under this head, that it should be an accident, perfectly distinct from the sense of the instrument.”
In Hinkle v. Royal Exchange Insurance Company, 1 Ves., 319, Lord Chancellor Hardwicke said the court had jurisdiction to relieve in respect to a plain mistake, in contracts in writing, as well as against fraud in contracts. Those who undertake to rectify an instrument in writing, by showing a mistake, undertake a task of great difficulty.
Lord Elden, in his opinion in the case of the Marquis of Townsend v. Stangroom, 6 Ves., 328, says, “Lord Hardwicke, saying the proof ought to be the strongest possiblo, leaves a weighty caution to future judges.” “ In Lady Shelburne v. Lord Inchiquin, it is clear Lord Thurlow was influenced by this, as the doctrine of the court, saying it was im[216]*216possible to refuse as competent, parol evidence which goes to prove that words taken down in writing were contrary to the concurrent intention of the parties; but he always thought it must be of the highest nature, for he adds, it must be irrefragable evidence.” The doctrines expressed in the foregoing citations, and many others, affirming the same principles, are adopted by Chancellor Kent, in the case of Gillispie v. Moore, 2 John., R., 585.
This court has equity jurisdiction in cases of accident and mistake, where the parties have not a plain and adequate remedy at law. R. S. of 1841, ch. 96, s. 10. So far as the power of the court extends upon this subject, the jurisdiction is to be exercised in the same manner as it is exercised by a court having full and general equity power.' Such jurisdiction has often been exercised in this state, in cases where the evidence of the mistake was plenary, and left no doubt in the mind, of its existence, and the jurisdiction in such cases has not been seriously questioned. Farley, in equity, v. Bryant, 32 Maine R., 474.
In this case the jurisdiction of the court, as a court of equity, over cases of mistake, in matters suitable for its exercise, is not denied; but it is insisted that the plaintiff in the case, as he has presented it, has a plain and adequate remedy at law; and that the bill is so framed, that he cannot, upon the facts alleged, be entitled to the relief sought. If the mistake stated in the bill is clearly shown, it cannot be denied that the plaintiff is without remedy, unless it can be afforded by a court having equity jurisdiction. For it is manifest, from the description in the'deed, in which the mistake is alleged to have been made, that 'the lines, which are to be the boundaries of the fifty acres conveyed absolutely, must depend upon the location of the McKay farm. The bill is not in the accurate and technical form which is desirable, but the question whether there was a material mistake in the deed is substantially presented, so that it cannot be misapprehended.
Among the exhibits is the copy of a deed from G-owen W. [217]*217and George W. McKay to Israel Dinsmore and William Freeman, dated May 25, 1835, and recorded May 28, 1835, which gives the boundaries of the land conveyed, and then follows, “ hereby meaning and intending to convey the south half of the farm, whereon we now live, together with one half of the Bracey lot, so called.”
On March 16,1836, Dinsmore and Freeman conveyed to the plaintiff a parcel of land, “ being the same tract of land which we purchased of Gowen W. McKay and George W. McKay, as their deed to us, now on record, will more particularly show, it being also a part of the homestead of the late William McKay, deceased.” The deed last referred to was to be valid, according to its terms, on the condition that the grantee should pay to the grantors the sum of seven hundred and fourteen dollars and forty-seven cents. Whether this condition was fulfilled or not, is not shown.
No question is made by the parties, as to the east line of the lot in question, it being the Narraguagus river, and the southern boundary of Stephen O. Madden’s land, which is the northern boundary of the land conveyod to the defendant by the plaintiff, is also well understood. The lot, which was first occupied by William McKay as his farm, is admitted to be lot No.
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Tenney, C. J.
On November 24, 1840, the plaintiff conveyed to the defendant, by deed of that date, a parcel of land situated in the town of Cherryfield, and described as follows: “ Containing fifty acres, and bounded on the east by the Narraguagus river, and on the north by the farm on which Stephen O. Madden now lives; the land which is hereby conveyed is the north half part of the McKay farm, so called.”
It is stated in the bill, that the fifty acres which the plaintiff sold and conveyed to the defendant by the deed just referred to, were intended and agreed by him and the said Madden, “ to be the northerly part of the McKay farm, that is, a part of both lots numbered 62 and 80 on the plan of Lothrop Lewis;” and that after the bargain and sale of the fifty acres, one James A. Campbell, a surveyor of land, was employed by them to survey and run out the said fifty acres, according to said bargain and sale; and that said Campbell, in presence of the plaintiff and defendant, did proceed to survey and run out the said fifty acres accordingly; and in doing so he began on the front lot, at the river, and run off twenty-three rods or thereabouts in width, from the northerly part of said lot, and thence keeping this width, and calculating to run west to the head of the back lot, No. 80 on said plan, to make out said fifty acres, being one fourth part of the McKay farm or homestead, and of the two lots numbered 62 and 80, containing two hundred acres; and that the defendant was therewith, and at the time, content, and satisfied with said running, and continued so for about ten years.
And it is further stated in the plaintiff’s bill, that Caleb Burbank, who was employed to write the deed before named, by a mistalee, inserted in the description of the land intended to be conveyed, the words “half part” of the McKay farm, which would embrace one hundred instead of fifty acres. This mistake the plaintiff seeks to have rectified by a decree of this court.
[215]*215The defendant in his answer, alleges that the fifty acres, which the plaintiff conveyed to him were intended and agreed to be the north half of the McKay farm, as mentioned in his deed, but denies that it was intended and agreed by him to purchase any part of the back lot, or lot No. 80. He also denies that James A. Campbell over measured off twenty-three rods from the north line of the defendant’s lot, and thence run a line so as to embrace a parcel of land of that width, or that he assented to or acquiesced in said running, or employed said Campbell to run the same. He further denies that Burbank made any mistake, such as is alleged in the bill, in writing said deed to him, and he denies all fraud charged in the bill.
It is a well established rule of law in courts of law, that a written instrument, duly executed, contains 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 jurisdiction which is broader, and will open the written contract to let in an equity, arising from facts perfectly distinct from the construction of the instrument itself. “ It must be an essential ingredient,” says Lord Thurlow, in Shelburne v. Inchiquin, 1 Bro., ch. 338, “ to any relief under this head, that it should be an accident, perfectly distinct from the sense of the instrument.”
In Hinkle v. Royal Exchange Insurance Company, 1 Ves., 319, Lord Chancellor Hardwicke said the court had jurisdiction to relieve in respect to a plain mistake, in contracts in writing, as well as against fraud in contracts. Those who undertake to rectify an instrument in writing, by showing a mistake, undertake a task of great difficulty.
Lord Elden, in his opinion in the case of the Marquis of Townsend v. Stangroom, 6 Ves., 328, says, “Lord Hardwicke, saying the proof ought to be the strongest possiblo, leaves a weighty caution to future judges.” “ In Lady Shelburne v. Lord Inchiquin, it is clear Lord Thurlow was influenced by this, as the doctrine of the court, saying it was im[216]*216possible to refuse as competent, parol evidence which goes to prove that words taken down in writing were contrary to the concurrent intention of the parties; but he always thought it must be of the highest nature, for he adds, it must be irrefragable evidence.” The doctrines expressed in the foregoing citations, and many others, affirming the same principles, are adopted by Chancellor Kent, in the case of Gillispie v. Moore, 2 John., R., 585.
This court has equity jurisdiction in cases of accident and mistake, where the parties have not a plain and adequate remedy at law. R. S. of 1841, ch. 96, s. 10. So far as the power of the court extends upon this subject, the jurisdiction is to be exercised in the same manner as it is exercised by a court having full and general equity power.' Such jurisdiction has often been exercised in this state, in cases where the evidence of the mistake was plenary, and left no doubt in the mind, of its existence, and the jurisdiction in such cases has not been seriously questioned. Farley, in equity, v. Bryant, 32 Maine R., 474.
In this case the jurisdiction of the court, as a court of equity, over cases of mistake, in matters suitable for its exercise, is not denied; but it is insisted that the plaintiff in the case, as he has presented it, has a plain and adequate remedy at law; and that the bill is so framed, that he cannot, upon the facts alleged, be entitled to the relief sought. If the mistake stated in the bill is clearly shown, it cannot be denied that the plaintiff is without remedy, unless it can be afforded by a court having equity jurisdiction. For it is manifest, from the description in the'deed, in which the mistake is alleged to have been made, that 'the lines, which are to be the boundaries of the fifty acres conveyed absolutely, must depend upon the location of the McKay farm. The bill is not in the accurate and technical form which is desirable, but the question whether there was a material mistake in the deed is substantially presented, so that it cannot be misapprehended.
Among the exhibits is the copy of a deed from G-owen W. [217]*217and George W. McKay to Israel Dinsmore and William Freeman, dated May 25, 1835, and recorded May 28, 1835, which gives the boundaries of the land conveyed, and then follows, “ hereby meaning and intending to convey the south half of the farm, whereon we now live, together with one half of the Bracey lot, so called.”
On March 16,1836, Dinsmore and Freeman conveyed to the plaintiff a parcel of land, “ being the same tract of land which we purchased of Gowen W. McKay and George W. McKay, as their deed to us, now on record, will more particularly show, it being also a part of the homestead of the late William McKay, deceased.” The deed last referred to was to be valid, according to its terms, on the condition that the grantee should pay to the grantors the sum of seven hundred and fourteen dollars and forty-seven cents. Whether this condition was fulfilled or not, is not shown.
No question is made by the parties, as to the east line of the lot in question, it being the Narraguagus river, and the southern boundary of Stephen O. Madden’s land, which is the northern boundary of the land conveyod to the defendant by the plaintiff, is also well understood. The lot, which was first occupied by William McKay as his farm, is admitted to be lot No. 62, fronting on the river, and the Bracey lot is directly in the rear thereof, and is No. 80. This was occupied by one Bracey, for a space of twelve or fifteen years; he lived upon it, and had a small field thereon. After Bracey left, he being sentenced to the state prison, which is represented as being thirty years ago, or more, William McKay said he bought that lot; he, however, did not occupy, further than to allow his cattle to run thereon, not having fenced it, or made any improvement upon it, but it appears that he sometimes took wood therefrom.
If it was intended by the parties to this suit, at the time of the conveyance of the lot in controversy, to convey fifty acres exclusively from lot No. 62, or the front lot, as from the McKay farm, the language of the deed is in accordance with that intention. If, on the other hand, it is shown by [218]*218“ irrefragable proof/’ that' they intended that the fifty acres should be taken as described in the deed, from the McKay farm, composed of the two lots, No. 62 and No. 80, being the original McKay lot, and the Bracey lot, it is equally manifest that the words “half part” of the McKay farm, did not express their design. Hence the question for the determination of the court is, whether it has been shown to its entire satisfaction, that the McKay farm was that constituted by the two lots.
In. the deed from G-owen W. and George W. McKay to Dinsmore and Freeman, of May 25, 1835, the Bracey lot is not represented as a part of the farm where the grantors then lived, but as a distinct parcel of land.
The deed from Dinsmore and Freeman of March 16, 1836, to the plaintiff, refers to the deed from Gowen W. and George W. McKay to them, which is represented as being on record, for a description of the land; and the description in the deed thus referred to is a part of the description in the deed making the reference. Marr v. Hobson, 22 Maine R., 321. And although the deed from Dinsmore and Freeman to the plaintiff contains the words, “ it being a part of the homestead .of William McKay,” yet the reference to the former deed, in which the Bracey lot is not represented as a part of the lot on which the grantors lived, will render these words of little importance, especially as the portion of the land described in those two deeds, exclusive of the Bracey lot, is not that from which the fifty acres conveyed by the plaintiff to the defendant is to be taken, on any construction. From these deeds, no light important to the plaintiff can be ■obtained.
It appears by the bill, answer and proof, that the defendant has not occupied the southern portion of the fifty acres, as he now claims them. Ordinarily such fact would be very important for a party standing in the position of the plaintiff, as indicating an opinion in the one opposing his claim, that he had no title to the part which he did not take into his possession. And in this case, the evidence is full and un[219]*219contradicted, that the defendant, in his acts, acquiesced in the construction which the plaintiff puts upon the deed, so far as it re ards a considerable portion of the land in dispute. And those acts were of such a description, as to satisfy the mind of one seeing those acts alone, that the present claim of the defendant is unfounded. But it is shown by the part of the answer which is responsive to the bill, that a dispute touching the boundary of the lot, upon the south, arose soon after the conveyance, and that the defendant was induced to believe that the land was actually described as being part of the two lots, when, as he alleges, by the contract, as made before the execution of the deed, the whole fifty acres should be taken from the front lot; that he made attempts to obtain satisfaction for his loss, arising from what he treats as an imposition on the part of the plaintiff, but not succeeding in obtaining counsel willing to prosecute his claim, he, for a long time, submitted to the loss, under what he considers now as an erroneous opinion of the true construction of the deed. This explanation, accompanied with the defendant’s allegations and denials in the answer, certainly tend somewhat strongly to show that a mistake was not made in the deed.
The testimony of persons living for a long time in the vicinity of the land, as to what constituted the McKay farm, is not in harmony one part with the other, but when all is examined in connection, it affords but little aid of itself.
The evidence derived from James A. Campbell and Salim P. Jordan does not fully support the allegations in the bill, touching the running out of the land, after the conveyance. It shows an acquiesence on the part of the defendant, in the limits contended for by the plaintiff, and unexplained would be important for the plaintiff. But with the explanations in the answer, which is responsive to the bill, its force is much qualified.
In consideration of all which appears in the bill, answer and proofs, we are not satisfied that the mistake stated in the bill as having been made in the deed from the plaintiff to [220]*220the defendant, has been so clearly shown as to authorize the reformation in the deed prayed for in the bill.
Bill dismissed, with costs for the defendant.