#### DRACHLER v. FOOTE.

(Supreme Court, Appellate Division, Third Department.

November 11, 1903.)

1. Reformation of Deed—Omission—Mutual Mistake—Evidence.

Defendant testified that, when negotiations were had for the sale of a farm to plaintiff, he told plaintiff of the existence of a right of way, and that plaintiff said he would buy the farm with the right of way reserved, and was corroborated by his son, a boy about 17 years old. On cross-examination defendant said he hardly thought there was anything said about "putting the reservation in the contract. Plaintiff denied the testimony of defendant, and both he and his wife testified that, after the plaintiff discovered the existence of the right of way, defendant expressed surprise, and agreed to make it right Aside from defendant’s testimony, there was no positive evidence that plaintiff ever knew of it, except constructively, through recordation of the deed reserving the right. The owners of the right of way were seen by plaintiff to cross, the premises occasionally during the year preceding plaintiff’s purchase thereof. The contract of purchase and deed were drawn by directions of defendant to his attorney, plaintiff having nothing to do with the drawing. *EeU,*that the evidence was insufficient to establish a mutual mistake of the parties in omitting from the deed the reservation of right of way, authorizing reformation of the deed.

Appeal from Trial Term, Chenango County.

Action by Frank Drachler against Ezra N. Foote. From a judgment for defendant, plaintiff appeals. Reversed.

Argued before PARKER, P. J., and SMITH, CHASE, HOUGHTON, and CHESTER, JJ.

H. C. Stratton, for appellant.

Eugene Clinton, for respondent.

HOUGHTON, J.

The action is for damages for breach of covenant of warranty and peaceable possession contained in a deed of a farm given by defendant to the plaintiff, dated January i, 1892. The breach consisted of the existence of a permanent right of way in a third party over what is termed a “five-acre parcel,” constituting a portion of the farm conveyed. The deed was given in pursuance of a contract executed in October, 1887, which provided for a deed free and clear from incumbrances. The defendant procured a deed and contract to be drawn by his own attorney, and caused a survey to be made of the lands conveyed. Neither the contract nor the deed reserved the right of way existing over the five-acre parcel. In 1889 the plaintiff brought action against those using the right of way and trespassing upon his land, and the parties in whom the right of way existed established their title. It is not questioned on this appeal that the right of way does exist, but the defendant seeks to avoid damages under the covenant contained in the deed on the ground that the existence of the right of way was known to the plaintiff at the time of his purchase, and that by mutual mistake the reservation of it was omitted from the deed. The trial court found with the defendant, and dismissed the plaintiff’s complaint, and granted reformation of the deed and contract by inserting an exception of the right of way in controversy.

*978The plaintiff insists that there was no such clear and satisfactory proof that there was a mutual mistake in omitting the reservation of the right of way as justified the court in dismissing the complaint and granting the relief to the defendant. We think he is right in this contention. The defendant testified that, at the time negotiations were had for the sale of the farm and the making of the contract, he told the plaintiff of the existence of the right of way, and that the plaintiff said he would buy the farm with* the right reserved; and in this he is corroborated by his son, at that time a boy about 17 years old. On cross-examination, however, the defendant says that he hardly thinks there was anything said about putting the reservation in the contract. The plaintiff denies this statement, and both he and his wife testify that after the plaintiff discovered the existence of the right of way the defendant expressed surprise that it existed, and agreed to make it right.

Counsel for both parties admit that mere knowledge of the existence of the right of way by the plaintiff would be insufficient to authorize a decree of reformation, and in this they are correct. The respondent insists, however, that knowledge on the part of the plaintiff is a strong circumstance in favor of the defendant’s claim that there was a mutual mistake in omitting the reservation. Aside from the defendant’s testimony, there is no positive evidence that the plaintiff actually knew of its existence. To be sure, he had constructive notice of it, because the deed reserving the right of way was on record. During the year he occupied the farm before he made the contract of purchase, he had seen the third parties crossing occasionally to their wood lot. Bare knowledge of this fact, however, would not show conclusively that he knew a permanent right to cross existed. It could as well be assumed that the crossing was by virtue of a mere license or good nature, as well as that it was under indisputable right.

The claim of the respondent that when the plaintiff fenced the five-acre parcel, after his purchase, he put a barway in his west line, north of the five-acre lot, for the accommodation of the third parties, and thus recognized the right of way, is not sustained by the evidence. He did put a barway in the north side of the five-acre lot, near the northeast corner, and on the west side near the southwest corner. These' barways were entirely proper for the use of the lot by the plaintiff himself—the north barway for the drawing of produce to his barns, and the west barway for the purpose of entering on his own wood lot, which was south of the five-acre tract. The location of the third barway is not clear, but it seems probable that it was put in the south line of the five-acre lot for the purpose of driving onto the plaintiff’s own wood lot. The parties having the right of way for some years drove across waste land north of the five-acre piece to the plaintiff’s own wood road, thus entering the wood lot for which the right of way was reserved. No objection was made to this until they drove through the plaintiff’s crops on the five-acre lot, when the controversy began.

The plaintiff had nothing to do with the drawing of the contract or of the deed. These were drawn by directions of the defendant to *979his own attorney. Now, at this late day, when confronted with his own solemn covenant against incumbrances, it is going too far, on the proof in this case, to allow him to escape the consequences under a plea that the reservation was omitted by mutual mistake. A written instrument, carefully and deliberately prepared and executed, is evidence of the highest character, and will be presumed to express the intention of the parties to it, until the contrary appears by clear, positive, and unequivocal evidence. To entitle a party to a decree reforming such an instrument because of mistake, he must show that the material stipulation which he claims was omitted or inserted was omitted or inserted contrary to the intention of both parties, and under a mutual mistake. It is not enough to show that he made a mistake himself; that, through inadvertence and error on his part, he executed an instrument which did not express what he intended. He must also show that the other contracting party labored under a similar delusion. Nevius v. Dunlap, 33 N. Y. 676, 680. Equity will not make a new agreement for the parties, nor, under color of reforming one made by them, add a provision which they never agreed upon, and did not want when the contract was written, although it may afterward appear very expedient or proper that it should have been incorporated. A mistake on one side may be a ground for rescinding a contract, or for refusing to enforce its specific provisions, but it cannot lie a ground for altering its terms. Curtis v. Albee, 167 N. Y. 364, 60 N. E. 660. Courts of equity should exercise great caution in reforming written instruments, and proof as to the mistake should be so clear and convincing as to leave no room for doubt. Mead v. Westchester Fire Ins. Co., 64 N. Y. 453, 455. These rules are salutary ones, long established, from which courts should not depart. Applying them to the present case, we think the trial court erred in granting a reformation and dismissing the plaintiff’s complaint.

The judgment should be reversed, and a new trial granted, with costs to the appellant to abide the event. All concur.