#### L. L. DAMERON and Wife v. ROWLAND LUMBER COMPANY.

(Filed 19 March, 1913.)

1. Deeds and Conveyances — Reformation—Equity—Mutual Mistake —Innocent Purchasers — Time of Notice.

Where a suit is brought to correct a deed to standing timber on a larger acreage of laud than was intended by the parties, for mutual mistake, against one claiming to be an innocent purchaser for value, without notice, an issue is presented as to whether the defendant had notice of the plaintiff’s equity at the time he bought the timber from the plaintiff’s grantee, and paid for it; for if he did not have notice at that time, he acquires title to the timber embraced in the conveyance free from the equity sought to be established.

2. Same — Pleadings—Evidence—Burden of Proof.

A. conveyed the timber growing on certain described lands to B., who conveyed to 0. Thereafter C. obtained'from A. a conveyance, referring for description to the first deed, granting an extension of time within which to cut and remove the timber. In a suit brought by A. against O. to correct the deeds for mutual mistake in the quantity of timber conveyed, the plaintiff m.ust either show that C. purchased from B. with knowledge of his equity, or allege and prove that there was mutual mistake in the conveyance extending the time for cutting the timber.

3. Deeds and Conveyances — Reformation—Equity—Mutual Mistake —Fraud.

A deed cannot be corrected or reformed because of the mistake of one of the parties to it, but only when the mistake is mutual; or when the mistake of one party is brought about by the fraud of the other.

*4964. Hypothetical Questions — Evidence.

A hypothetical question which presupposes the existence of facts of which there is no evidence is incompetent.

Appeal from 0. H. Allen, J., at February Term, 1912, of SAMPSON.

Civil action. These issues were submitted to the jury:

1. Was the description of the land in the original timber deed from the plaintiff to H. L. Pope, trustee, inserted by the mutual mistake of the plaintiff and said. Pope? Answer: Yes.

2. At the time of the execution of the extension deed referred to in the complaint was all the timber on plaintiffs’ lands embraced in said deed by the mutual mistake of the parties ? Answer: Yes.

3. If so, what land was intended by them to have been described therein? Answer: Yes; the seventy-five (15) acres of land in Motley Branch, Ward’s Swamp, and the Great Ooharie up to the line chopped by Mr. Joe Faison the first time.

4. Is the plaintiffs’ cause of action barred by the statute of limitations? Answer: No.

5. What damages has the plaintiff sustained by reason of the cutting and removal of the timber on the lands of the plaintiffs, other than the 75 acres referred to in the complaint? Answer: $1,308 damage.

The defendant appealed.

II. A. Grady and Fowler & Grumpier for plaintiffs.

A. McL. Graham and G. E. Butler for defendant.

BROWN, J.

This action is brought to correct the description in a deed for timber executed in 1892 by plaintiffs to II. L. Pope, which is as follows:

“Bounded by the lands of James Warwick, Redet Carr, Dr. Benton, and Calvin Bowden, being the same property deeded to me from J. D. Packer and wife, registered in Book 43, page 513, etc., containing 75 acres, more or less. Timber to be cut 12 inches and upwards across the stump.”

The defendant acquired title by mesne conveyances, and on 21 December, 1'906, the timber being uncut, purchased from plaintiff an extension of time, evidenced by extension deed duly *497executed, and under that contract defendant has proceeded to cut the timber not only on the 75 acres, but on the entire land described in the Packer deed.

The allegation of the complaint upon which the Pojte deed is sought to be reformed is as follows:

> “That said deed calls for only 75 acres of timber on a tract of 216 acres, said 75 acres lying on the south end of said tract and at the time of the exécution of said deed to said Pope, cutting off from said 216-acre tract the 75 acres of land upon which the timber was sold. That in drawing the deed for said timber, through the inadvertence of the draftsman, the boundaries of said 75-acre tract were left out, and while said deed calls for only 75 acres, yet the description therein covers all of the lands of the plaintiffs. Said error was not known to the plaintiffs until a few days prior to the commencement of this action, and was due to the mutual mistake of the parties thereto.”

It is admitted that the deed as written covers the timber on' all the land described in the Packer deed, that being the controlling description.

The defendant claims to be a tona fide purchaser for value and without notice of the alleged claim of plaintiff, and tendered this issue:

> “Did the defendant, Eowland Lumber Company, at the time it purchased the timber in question from the North State Lumber Company (Pope’s grantee), have notice of any mistake on the part of the plaintiff and Pope in the execution of the original timber deed? Answer:.”

His Honor erred in not submitting such issue in the present state of the pleadings.

It is not material that defendant had notice at the date of the extension deed. It had then bought and paid for the timber conveyed by the deed from plaintiffs to Pope. The defendant’s rights as to the quantity of timber acquired is to be determined by the date of the purchase from the North State Company, Pope’s grantee, except as hereinafter stated.

If at that time the defendant had no actual or constructive notice of the plaintiff’s equity, and was a tona fide purchaser *498for value, it acquired title to tbe timber in controversy, and tbe extension of tbe time of cutting by plaintiffs did not affect it.

Tbe action is not brought to reform and correct tbe extension deed, as we understand tbe complaint. Tbat deed refers to tbe deed to Pope, Book 80, page 447, for a description of tbe land, and tbe extension by its very terms applies to all tbe timber covered by tbe Pope deed.

By proper amendment to tbe complaint tbe plaintiffs will be permitted to set out another cause of action and to prove, if they can, tbat tbe descriptive words of tbe extension deed were inserted by mutual mistake of tbe plaintiffs and tbe defendant, tbe Rowland Lumber Company, and tbat tbe 'extension deed was intended to apply only to tbe cutting of timber on tbe 75 acres, alleged to have been marked out at tbe time.

If tbe plaintiff shall succeed in properly establishing tbat allegation, tbe issue - tendered by defendant, supra, would be immaterial. Tbe rights of tbe defendant would then be deter- * mined by tbe extension deed.

■ As this case is to be tried again, we will repeat, what has been often decided, that 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 both parties, or else upon tbe mistake of one party brought about by tbe fraud of tbe other.

We will notice one exception to evidence. Arthur Lee, surveyor, was permitted to testify as follows:

> “Suppose you bad been given a deed tbat called for 75 acres in tbe lowgrounds of Motley Branch, Ward's Swamp, and Great Cobarie, where would you have located it?

> “Answer: I would have gone to what we call water oak on Big Cobarie, at Carr’s corner, and run south until I came to tbe edge of tbe creek; from tbe edge of tbe creek down until I got to tbe plantation, then tbe plantation to tbe end of it; then I would have taken tbat Motley Branch land up here (indicating on map) as far as it would fake to get it.”

This evidence is incompetent and should have been excluded. Tbe question was purely hypothetical. It presupposed a deed not in existence and facts not in evidence.

New trial.