#### L. L. DAMERON et al. v. ROWLAND LUMBER COMPANY.

(Filed 15 October, 1913.)

1. Deeds and Conveyances — Mutual Mistake — Equity.

A mistake made by the grantor in a deed to standing timber of tbe number of acres embraced by tbe description will not alone entitle him to correct tbe deed, for, in tbe absence of fraud, tbe mistake must be mutual.

2. Same — Evidence.

Tbe owner of standing timber conveyed tbe same to be cut and removed in a stated time, and thereafter executed to tbe assignee of this right by the grantee in bis deed a conveyance, upon consideration, allowing a further time for cutting and removing the timber originally conveyed. In’a suit to correct the original deed, brought against the grantee in tbe second deed, an *279allega tion- of fraud was withdrawn and mutual mistake relied on. The evidence tended to show that the mistake alleged was that of the grantor alone; that h'is own attorney drew the second deed; that the grantor could read and write,’and bad partially read this deed and delivered it upon receiving the price agreed upon: .Held, no ground for equitable interference was shown.

Appeal by plaintiff from Justice, J., at May Term, 1913, Of SAMPSON.

Tbis is an action to restrain tbe cutting of timber and to reform a deed and to recover damages.

On 23 June, 1892, tbe plaintiffs executed a deed, in consideration of $150, to H. L. Pope, trustee, conveying tbe timber in controversy, witb tbe right to enter and cut and remove tbe same.witbin fifteen years, and tbe defendant is tbe owner by purchase of tbe property rights and easements in said deed.

On 21 December, 1906, the plaintiffs executed a deed to tbp defendant, in consideration of $500, extending tbe time for cutting and removing, tbe timber in tbe deed to Pope, trustee, three years.

Tbis extension deed was prepared by one of tbe attorneys for tbe plaintiffs, and it has 'the following recital:

“Whereas, we, L. L. Dameron and wife, Sallie Dameron, have heretofore conveyed to Hugh L- Pope, trustee, certain timber trees and privileges on tbe lands hereinafter described, by deed recorded in Book 80, at page 447, of tbe register’s office of Sampson County, which deed is about to 'expire, limitation therein named; and whereas said trustee has conveyed said timber and easements to tbe Rowland Lumber Company, and said company is desirous of securing an extension of time within which to exercise the 'privileges and rights conveyed in said deed.”

Tbe plaintiffs allege in'their complaint that tbe execution of tbe deed to Pope, trustee, and of tbe extension deed, was procured by fraud, or was tbe result of a mutual mistake, and that both covered more land and timber than was intended to be conveyed; but on tbe trial they stated in open court that they would go to tbe jury upon tbe question of mutual mistake *280in reference, to the drawing of the extension deed referred to in the complaint, and that they would not insist that the defendant had actual notice of any fraud or mistake in connection with the original deed to H. L. Pope, trustee.

The plaintiffs offered evidence tending to prove that the deed to Pope was not drawn according to the contract of sale,, and that it included more land and timber than was intended to be conveyed, and one of the plaintiffs testified; among other things, as follows:

“In October, 1906, I signed an option to the defendant for an extension of three years on the Pope deed, and I was paid $1 option money at that time, the agreed price for the extension being $500. This trade was closed by Mr. Turnbull; Joe Faison was out in his buggy. Mr. Turnbull at that time may have had the original deed made to Pope; I don’t recollect. He came back on 21 December, 1906, and took up the option and I and my wife executed the extension deed. I think one of my attorneys wrote the extension deed. I reckon I read a little of the extension deed. He may have handed it to me to read. On his paying me the $500 that day, I just simply extended the time for three years on the timber in the original deed. In February, 1909, Joe Faison came and asked me to show him the timber I had sold. I went and showed him, and he blazed a line across my land, cutting off what I claimed to be about 75 acres. There was nó chopped or blazed line prior to that time. The timber blazed is shown on the map. Faison blazed according to my directions. This was three years after the execution of the extension deed. Faison never had either the original or extension deed at the time blazes were made under my direction.' My wife and I can both read and write. I did not mean to swear in my complaint that at the time of the execution of the extension deed that the boundary of the 75 acres was well defined, and that the trees along said line were blazed. There are about 90 acres of cleared land in my tract.”

At the conclusion of the evidence his Honor entered judgment of nonsuit, on motion of the defendant, and the plaintiff excepted and appealed.

*281 H. A. Grady and Fowler & Grumpier for plaintiff.

A. McL. Graham and George F. Butler for defendant.

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.