#### LEHEW v. HEWETT.

(Filed February 25, 1902.)

REFORMATION OF INSTRUMENTS — Deeds—Evidence—Questions for Jury.

Whether certain evidence in an action for the reformation of a deed is strong, clear, and convincing, is a question for the jury.

Action by S. W. Lehew against Frank B. Hewett and others, heard by Judge George II. Brown and a jury, at October Term, 1900, of the Superior Court of BnuNswiOK County. From a judgment for the defendants, the plaintiff appealed.

Iredell Meares, for the plaintiff.

Bellamy & Peschau, for the defendants.

CLARK, J.

This is an action for reformation of a deed executed to plaintiff’s former wife. The plaintiff testified that he paid the purchase-money himself, and directed that the deed should be made to himself; that he did not intend to have t-he deed made to his wife; that he directed his wife’s brother,' from whom he bought the land, to have the deed drawn to plaintiff, and that the said grantor had the deed recorded; that-he (the plaintiff) did not discover till after the registration that the deed was executed to his wife. One of the defendants testified that the plaintiff paid the purchase-money. No fraud was alleged or proved, and his Honor correctly'held that, in order to reform a deed for mistake, the proof should be clear, strong and convincing. Cobb v. Edwards, 117 N. C., 244. The evidence was sufficient to be submitted to the jury, with the instruction that it must be clear, strong and convincing to warrant a. verdict for the plaintiff, but whether it was or was not “strong, clear and *23convincing” was to be determined, by tbe jury and not by the Court, otherwise the jury would be useless.

“The Judge has no more right when the testimony, if believed, is sufficient to be submitted to the jury, to determine in the trial of civil actions what is strong, clear and convincing proof, than he has in the trial of a criminal action to express an opinion as to whether guilt has been shown beyond a reasonable doubt.” Cobb v. Edwards, 117 N. C., at page 253, citing Hemphill v. Hemphill, 99 N. C., 436. His Honor should have submitted the ease to the jury under a charge that while it required clear, cogent and convincing proof, not merely a preponderance of evidencie, in order to reform a deed for mistake, it was for the jury to determine from the evidence whether any mistake had been made in drafting the deed, and in order to do so, that they should be fully satisfied that the mistake had been made, before they could find .for the plaintiff. In refusing to submit the case to the jury there was

Error.