#### JAMES B. LLOYD and FRANK B. LLOYD v. W. L. SPEIGHT and S. E. SPEIGHT.

(Filed 22 February, 1928.)

Reformation of Instruments — Degree of Proof Required — Equity—Mutual Mistake.

Equity will not reform a deed for tbe mutual mistake of tbe parties, or tbe mistake of one superinduced by tbe fraud of tbe other unless tbe party seeking this relief establishes tbe same by clear, strong, and convincing proof.

Connok, J., did not sit.

Appeal by plaintiffs from Nunn, J., at April Term, 1921, of Edge-combe.

Affirmed.

Gilliam & Bond for plaintiffs.

George M. Fountain and Henry G. Bourne for defendants.

ClakksoN, J.

Since the institution of this action S. E. Speight has died and the land in controversy has passed and vested in the defendant, W. L. Speight, by the terms of the will of S. E. Speight.

The question involved: Plaintiffs contend that they introduced evidence tending to show that certain conveyances from them to defendants, same being sufficient in form to pass a fee-simple title, were executed in pursuance of prior oral agreement whereby plaintiffs, being-ignorant or mistaken with respect to their title and laboring under tbe mistaken belief tbat they were seized only of life estates, contracted to convey their rights in certain lands to defendant, or bis agent; tbat defendant either shared in this mistaken belief as to plaintiff’s title or *180knowing tbeir true title fraudulently concealed said fact and induced plaintiffs to continue in sucb mistaken belief and to convey tbeir interest in said property at a grossly inadequate price; tbat in law and in fact plaintiffs were seized of a fee-simple title to a large portion of tbe lands conveyed and of a defeasible fee to tbe balance. On this evidence plaintiffs prayed for a reformation of said instruments and upon motion were nonsuited. Tbe correctness of tbis ruling is tbe only question involved.

Defendants contend: Tbe plaintiffs in tbeir complaint allege tbat tbe four deeds executed by them, one to W. L. Speight and tbe other three to S. E. Speight, whom they allege was tbe trustee or tbe agent of W. L. Speight, were either executed' under a mistake of tbe grantors and grantees, or through a mistake of tbe grantors induced by tbe fraudulent representation of tbe grantees.

The will of Sarah E. Lloyd, under which plaintiffs claimed title, was construed in Winslow v. Speight, 187 N. C., p. 248, decision filed 27 February, 1924. The present action was commenced 3 July, 1925.

In Allen v. R. R., 171 N. C., p. 342, citing numerous authorities, it is held: “To correct a deed on account of mistake is a recognized subject of equitable jurisdiction, but in order to its exercise for the purpose of reforming the instrument because it doés not properly express tbe agreement of tbe parties, it is established tbat tbe mistake must be mutual or it must be tbe mistake of one superinduced by tbe fraud of tbe other.”

In Sills v. Ford, 171 N. C., p. 738, it is held that “ ‘Equity will correct a mistake, either as to fact or law, made by a draftsman of a conveyance or other instrument which does not fulfill or which violates the manifest intention of tbe parties to the agreement.’ (Leitensdorfer v. Delphy, 15 Mo., 137.) And tbe denial of one of tbe parties tbat there was any mistake will not defeat tbe equity, but it depends altogether upon tbe finding of tbe jury from tbe pertinent evidence, which is of a clear, satisfactory, and convincing character, tbat a mistake was made in expressing tbe real agreement.” Lee v. Brotherhood, 191 N. C., 359; Crawford v. Willoughby, 192 N. C., 269.

The general and accepted rule is that the proof must be clear, strong and convincing. Glenn v. Glenn, 169 N. C., 729; Johnson v. Johnson, 172 N. C., 530; Long v. Guaranty Co., 178 N. C., 503.

Four deeds were made (1) acknowledged 18 June, 1910, and duly registered 20 June, 1910; (2) made and executed 28 November, 1921, and registered 29 November, 1921; (3) April, 1922, and registered 23, August, 1922; (4) April, 1922, and registered 29 November, 1922.

From a careful examination of the evidence of plaintiffs, which we do not think necessary to analyze, we are of the opinion that it was not *181sufficient to be submitted to the jury an,d the ruling of the court below, sustaining defendants’ motion for judgment as in case of nonsuit at the close of plaintiffs’ evidence, correct. O. S., 567. The judgment of the court below is

Affirmed.

CoNNOR, J., did not sit.