#### RICHMOND CEDAR WORKS v. ROPER LUMBER COMPANY.

(Filed 10 March, 1915.)

1. Deeds and Conveyances — Words of Inheritance — Estates for Life.

A deed to lands without the use of the word “heirs” in connection with the name of the grantee, executed prior to 1879, conveys only a life estate to the grantee.

2. Reformation of Instruments — Equity—Mutual Mistake — Lapse of Time— Evidence Lost.

Courts of equity will reform and correct a deed upon the ground of mutual mistake of the parties, in proper instances; but its jurisdiction *392should be cautiously exercised by tbe courts, and tbe relief should be denied except in clear cases, particularly when tbe parties to tbe deed are dead and tbe evidence relating to tbe transaction has been lost by lapse of time; and an unexplained delay for an unreasonable time, with tbe adverse party in possession (in this case, for twenty years), will deny tbe right to the party seeking it.

3. Reformation of Instruments — Equity—Mutual Mistake — Deeds and Conveyances — Connected Paper Title — Color—Evidence.

The fact that a party seeking to reform a deed for mutual mistake does so to enable him to set up adverse possession under color thereof against a party having tbe true and connected title will have weight in equity against tbe relief prayed for.

4. Deeds and Conveyances — Words of Inheritance — Limited Warranty — Intent — Estates for Life.

It is held, that a deed to swamp lands, made in 1867, conveying all the grantor’s right, title, and interest in and to the lands, with sufficient description, without the use of the word “heirs” in connection with the name of the grantee, reciting it was purchased by the grantor at a certain commissioner’s sale in 1832, but no deed therefor had been received, with warranty only as to the grantor and heirs, and no other person, affords no evidence within itself that by mutual mistake the words of inheritance, necessary to create a conveyance in fee at that time, had been omitted from the instrument by mutual mistake; but, to the contrary, only a life estate was intended to be and was conveyed.

5. Reformation of Instruments — Equity—Right to Reform — Estates—Limitation of Actions — Adverse Possession.

The right to reform a deed to lands for mutual mistake is not an estate in the lands, and, when corrected, the reformed instrument cannot relate back so as to render seven years possession of the lands theretofore held by the claimant such as to ripen his title therein, as against the rights of one having the connected paper title.

6. Reformation of Instruments — Equity—Lost Deeds — Evidence.

■ The íwinciples obtaining in actions for the reexecution of lost deeds do not apply to suits to reform conveyances of land for mutual mistake.

Appeal by plaintiff from Long, J., at June Special Term, 1914, of Gates.

Petition to rebear an appeal disposed of at tbe last term without an opinion, tbe Court being equally divided, Associate Justice Brown not sitting.

Tbe action is to determine 'tbe title to land and to recover damages for trespass thereon.

Tbe plaintiff introduced a grant from tbe State to John Fontaine, of date 10 July, 1788, for tbe purpose of showing title out of tbe State. •

Tbe next deed offered by tbe plaintiff was one from Joseph Allyn to George T. 'Wallace, of date 16 March, 1857, which reads as follows:

“This deed, made this tbe 16th day of March, in tbe year 1857, between Joseph T. Allyn, grantor, to George T. Wallace, for tbe consid*393eration of $200 paid by the said Wallace, and the said Allyn doth give, bargain, and sell to the said Wallace all of his right, title, and interest in and to a juniper swamp, called the Fountain Swamp, situate, lying, and being in the county of Gates in the State of North Carolina, and described as follows: [Here follows description.]

“One-third of the above tract of land was sold to the late George Douglas more than twenty years since, and the said Douglas’s portion was divided off by writing signed by the parties, and his third part is not included in this sale.' The said tract of land was purchased of the commissioners of the estate of the late T. Proctor in June, 1832, and no deed had been made to the grantor; and the said Allyn conveys all right and title that is vested in him and his heirs and warrants against them, and no other person. Witness my hand and seal.

“Jos. T. AllyN. [seal]”

The plaintiff then offered a deed from George T. Wallace to the Richmond Cedar Works, Limited, dated 3 April-, 1885, and a deed from the. Richmond Cedar Works, Limited, to the plaintiff, dated 2 July, 1891.

The plaintiff alleged in its complaint that the word “heirs” in connection with the name of the grantee was omitted from the deed of Allyn to Wallace by mutual mistake, but it offered no evidence in support of this allegation except the deed itself.

The plaintiff offered evidence tending to locate the land described in the Fontaine grant, and evidence tending to show that the land described in the deed from Allyn to Wallace and the deed from Wallace to Richmond Cedar Works, Limited, and the deed from Richmond Cedar Works, Limited, to Richmond Cedar Works lay within the bounds of said grant, and locating the land described in said deed.

The plaintiff offered evidence tending to show that the land in controversy was swamp land and in a swamp of more than 2,000 acres.

There was evidence tending to show that George T. Wallace, the grantee in the deed from Allyn to Wallace, had been in adverse possession of the land in controversy continuously for more than seven years prior to 1884, but neither plaintiff nor those under whom it claims have had any possession since 1884.

The defendant introduced a number of deeds beginning with deed from the heirs of John Fontaine and deeds to those under whom it claims from them to itself, and introduced parol evidence tending to locate these deeds as covering the locus in quo, and also evidence of continuous adverse possession in itself of the land in controversy for more than twenty years prior to 1904.

At the close of all the evidence the defendant moved for judgment of nonsuit.

The motion was allowed, and the plaintiff excepted and appealed.

*394 Winston & Biggs for plaintiffs.

Small, MacLean, Bragaw & Rodman for defendants.

AlleN, J.

The deed from Aliya, to Wallace under which the plaintiff claims conveyed only a life estate, as it was made before 1879, and the word “heirs” is nowhere used in connection with the name of the grantee (Cullens v. Cullens, 161 N. C., 346), and as‘the grantee therein is dead, there is a failure of title in the plaintiff unless the deed is reformed and converted into a fee.

The jurisdiction of a court of equity to reform and correct a deed upon the ground of mutual mistake is well established, but it is a jurisdiction which should be cautiously exercised and should be denied except in clear eases, particularly when the parties to the deed are dead and the evidence relating to the transaction has been lost by lapse of time.

The duty devolving upon the Court and the degree of proof required are well and accurately stated in Ely v. Early, 94 N. C., 1, which has been frequently approved, where the Court says: “That the Court may, in the exercise of its equitable jurisdiction, correct a mistake in a deed or other written instrument, such as that alleged in the complaint, i's not controverted; but it will do so only where the mistake is made to appear by clear, strong, and convincing proof. The Court must be satisfied from the evidence, beyond reasonable question, of the alleged mistake. By the solemn agreement of the parties to it, the deed at once upon its execution becomes high and strong evidence of the truth of what is expressed in it, as between the parties to it. One of its chief purposes is to make such evidence, and it ought not to be changed or modified except upon the clearest proof of mistake. ... It must stand until by a weight of proof greater than itself a court of equity, in the exercise of a very high and delicate jurisdiction, shall correct it. The Court always acts in such cases with great caution and upon the clearest proof, and in Wilson v. Land Co., 77 N. C., 452, Mr. Justice Bynum, having reference to a deed, said: ‘The whole sense of the parties is presumed to be comprised in such an instrument, and it is against the policy of the law to allow parol evidence to add to or vary it, as a general rule. But if the proofs are doubtful and unsatisfactory, and the mistake is not made entirely plain, relief will be withheld upon the ground that the written paper must be treated as the full and correct expression of the intent until the contrary is established.’ The same doctrine is laid down in Story’s Eq. Jur., pars. 153, 157; Pomeroy Eq. Jur., par. 859; Rawley v. Flannelly, 30 N. J. Eq., 612; Burger v. Dankle, 100 Pa. St., 113; Browdy v. Browdy, 7 Pa. St., 157.”

Diligence is also a duty imposed upon the party seeking relief, the maxim of equity being Vigilantíbus non dormientibus equitas subvenit, *395and of tbis maxim Mr. Bispbam in bis treatise on Equity, sec. 39, says: “It is designed to provoke diligence, to punisb lacbes, and to discourage tbe assertion of stale claims. By virtue of tbis maxim sucb claims are rejected in equity, independently of any statute of limitations. . . . Tbis defense is peculiar to chancery courts, wbicb in sucb cases act upon their own inherent doctrine of discouraging, for tbe peace of society, antiquated demands, and refuse to interfere where there has been gross lacbes in prosecuting the claim or long acquiescence in tbe assertion of adverse rights.”

In Simmons v. R. R., 159 U. S., 278, tbe Court says: “It has always been a principle to discourage stale demands; lacbes are often a defense wholly independent of the statute of limitations.” And tbe same principle was declared in Capehart v. Mhoon, 58 N. C., 180, and in Clements v. Ins. Co., 155 N. C., 61.

In tbe application of tbe maxim equitable relief was denied in Tate v. Conner, 17 N. C., 225, after tbe lapse of thirty-four years, in Lewis v. Coxe, 39 N. C., 199, after forty years, and in Ditmore v. Rexford, 165 N. C., 621, after fifty-seven years,‘the reason being, as stated in tbe Lewis case, that tbe Court cannot be sure it sees tbe transaction clearly ‘through tbe dim obscurity of so long an interval.’ ”

¥e speak of a delay for an unreasonable time, unexplained and without excuse, and tbe evidence also shows tbe element of acquiescence in tbe assertion of a hostile and adverse claim — the possession of tbe defendant for twenty years.

Another consideration wbicb weighs against tbe equitable relief prayed for is that tbe plaintiff is asking a court of equity to reform a deed to enable it to set up an adverse possession under color against' a defendant, who has tbe true title by mesne conveyances connecting itself with tbe grant, upon wbicb tbe plaintiff has to -rely to show title out of tbe State.

Let us, then, examine tbe deed in tbe light of tbe authorities, and in connection with tbe circumstances that have transpired since its execution.

Tbe strongest position in behalf of tbe plaintiff is that tbe grantor, Allyn, undertakes to convey not only bis own interest in tbe land, but also tbe interest of bis heirs; tbe argument being that if be bad not bad an estate of inheritance and bad not intended to convey it, tbe word “heirs” would not have been used.

Tbis view is entitled to consideration, but by tbe use of tbe word it also appears that be knew its meaning and effect, and an examination of tbe whole deed indicates caution and circumspection. Tbe grantor is careful in wording tbe deed 'so that it shall convey, not tbe land, but bis interest in it, and bis warranty is restricted to himself and bis heirs.

*396Tbe reason for tbis is apparent upon tbe face of tbe deed, as tbe deed itself shows that be bad no title at tbe time of its execution, because while be says be bought tbe land in 1832, be also states that be bad never received a deed, although twenty-five years bad elapsed,' and be could not well have acquired title by possession if tbe locus in quo is correctly described in tbe petition as a juniper swamp, not fit for cultivation and not inhabitable by man, a part of tbe Great Dismal Swamp, a fit abode for bears and other wild beasts.

Instead of the deed affording clear indication of an intention to convey a fee, it shows upon its face that the grantor did not have a fee, and manifests a purpose to cut down the estate conveyed as far as possible, and a purpose to minimize liability in the event of a claim against him.

It also appears that the deed was made fifty-eight years ago, that the plaintiff has held the deed under which it claims more than twenty-four years, that neither the plaintiff nor any one under whom it claims has ever had possession of the land except that prior to 1884 George T. Wallace held possession for seven years, and that during all this time there has been no effort to assert the claim that the deed of 1857 was intended to convey a fee simple, although the evidence introduced by the defendant shows that it has been in possession for about twenty years since 1884.

Giving full effect to the whole deed and considering the attendant circumstances, we are of opinion that tbe relief prayed for by tbe plaintiff, should be denied.

If, however, the deed should be reformed and converted into a fee, the plaintiff would still be without title, as upon the facts in this record the decree of reformation would not relate back so as to enable the plaintiff to claim that the seven years adverse possession of Wallace was under the deed as reformed.

Color of title and adverse possession ripening it into a true title must go hand in hand, and when Wallace was holding adversely, it was under a paper purporting to convey a life estate and not a fee; and if he was entitled to reform the deed, it was a mere right in equity, and not an estate.

In the case of Henly v. Wilson, 77 N. C., 218, the plaintiff claimed under a deed from one Stone to one McOlennahan for life, and contended . upon the trial that it appeared from the deed that it was intended to convey a fee simple, and that this vested in him an equitable estate in fee upon which he could recover; and the Court, dealing with this contention, says: “Tbe plaintiff’s counsel, on the argument, took the ground that he could maintain the action as equitable owner in possession under the provisions of C. C. P., sec. 55. That provision does not apply; for the plaintiff has no equitable estate as a purchaser in possession or other *397 cestui que trust, but bas only bright in equity to bare Stone converted into a trustee and decreed to execute a deed in fee simple; and tbe fact tbat Stone, pending tbe action, executed tbe very deed tbat be would bave been required to execute does not vary tbe case; for tbe deed took effect only from tbe time of its delivery, and Stone bad no power to make it relate back to tbe time of tbe execution of tbe deed to McClennaban. Indeed, a court of equity bas no sucb power, and could only bave required Stone to do wbat be bas done, namely, execute a deed in conformity to tbe intention of tbe parties.”

It will be noted tbat tbe plaintiff is not asking to- reform a deed wbicb is a link in a chain of title, nor does tbe principle apply applicable to tbe reexecution of lost deeds, as illustrated by Hodges v. Spicer, 79 N. C., 223, and Phifer v. Barnhart, 88 N. C., 333.

Tbe petition to rebear will be dismissed and tbe judgment of tbe Superior Court affirmed.

Petition dismissed.