#### William Montgomery v. E. J. Mann, Appellant.

1 Reformation of Deed : mutual mistase. To reform a deed on the ground of mistake, the mistake must be mutual.

2 Evidence: statement of husband. In a suit by the grantor to reform a deed, statements of the grantee’s husband, made after the transaction, are inadmissible, where there is no showing of authority to speak for grantee.

3 Evidence: mutual mistake. Evidence in a suit to reform a deed. so that coal in the land shall be reserved to the grantor considered and held insufficient, to show mutual mistake.

*Appeal from Polk District Court.*— Host. O. P. Holmes, Ju'dge.

Saturday, May 23, 1903.

Suit for reformation of deed. Decree as prayed, and defendant *appeals.*

Reversed.

*Thomas F. Stevenson*for appellant.

*James Nugent*for appellee.

Ladd, J.

On the 23d day of September, 1896, the plaintiff exchanged three and one-fourth acres of land to the defendant for certain, city lots, each property being improved, and subject to incumbrances of about equal amount. The land is underlaid with a vein or stratum of coal, and in this suit, begun March 1, 1901, the plaintiff asks the deed of conveyance to defendant be so corrected that said coal shall be excepted therefrom and retained by plaintiff. Previous to the negotiations which resulted in an exchange, the plaintiff and defendant’s husband had entered into an agreement under which defendant was to *610receive three acres of land without the coal. One Mount prepared a written memorandum thereof, which was signed by plaintiff, and the husband, and also a deed and mortgage, which were necessary to carry it into effect. Un doubtedly, a mistake was made by him in omitting the exception from this deed, as he testified; but he knew nothing of the terms of the agreement as finally consummated. As plaintiff testified, the husband backed out. According to the latter and defendant, the agreement was made subject to her approval, which was withheld because ©f the retention of the coal. Though plaintiff denies it, and also any personal acquaintance with • defendant, the evidence satisfactorily show's that he subsequently took the defendant and her husband out to see the land. Both so testify, and they are confirmed by their daughter and two disinterested witnesses. Defendant testified that she then advised plaintiff that she would not trade for the land without the coal, and in this she is corroborated by her husband. No agreement was reached at that time, but a few days later she sent word by her husband that she would trade for three and one-fourth instead of three acres of land, subject to an incumbrance' of a $1,000 instead of $700. JSio mention was made of- the coal, and Mount merely changed the description in the deed and the amount of the mortgage previously prepared, and these were executed.

Possibly plaintiff supposed the coal was to be excepted in the deed, for he had previously arranged to lease it to the Keystone Coal Company. But, to justify the reformation SuSfi teke' of the deed, the mistake must have been mutual. The defendant testified that she did not-understand the coal was to be excepted, and would not have exchanged had s.uch exception appeared in the deed.

Evidence of the husband’s admissions, alleged to have been made long subsequent to the transaction, was not *611offered for the purpose of impeachment. It was admissible *. Evidence: husband. for no other purpose, for the reason that he was not shown to have been authorized in any way to speak for her.

It seems to be ’ thought that, as the coal was to be excepted under the memorandum, signed by her husband, which she repudiated, and nothing was said of the coal 3. Evidence: take. in the oral agreement consummated, she ought to be bound by an inference that the terms were to be the same as before, save as modified. But, as. we think, she had refused to take the land under the first arrangement because of the exception to be included in the deed, and had informed Montgomery, when returning from the land, that she would not take it without the coal. If so, the inference is quite as, if not more reasonable, that her offer was made on this basis. Her claim is. somewhat confirmed by proof that, even- with the coal included, she was giving more for the land than its fair value. Though coal was being taken from beneath the surface through a shaft near by, this was so close to the line that she may well have thought it from'adjoining land. Her testimony is uncontradicted, save by a witness who says that when at her,home he heard her caution her husband not to allow the agent to bind them for the delivery of the coal, as it did not belong - to them. This was more than four years after the trade, and is denied by defendant. The evidence of mistake on her part falls far short of being of that clear and satisfactory character exacted in order to justify reformation. See *Hunt v. Gray,*76 Iowa, 268; *Murphy v. First National Bank,*95 Iowa, 325; *Hoyer v. King,*101 Iowa, 363. No persuasive equitable considerations are manifest in this record, and we reach the satisfactory conclusion that the plaintiff has failed to establish a mutual mistake by the quantum of proof essential in such cases. — Kevkesed.