#### MOORE T. SEALEY *against*GILBERT BRUMBLE *and*JOEL BRITT.

Where land, which was sold to A under a mistaken description, was after-wards conveyed by the same owner to B by a proper deed, for a valuable consideration, without notice to B of tl*e mistake, it was *held*that a bill to reform the former deed and correct the error, would not lie against either A or B; but it appearing that A had got paid for part of the same land twice, he was not allowed to recover costs on the dismissal of the bill.

Cause removed from the Court of Equity of Eobeson County.



One Isham Cox, conveyed to defendant, Gilbert Bramble, the tract, described in the plat anuexed, A, B, C, D, also,-another tract adj oining Gilbert Bramble, who sold and conveyed to one Ward a part of the first mentioned tract purporting to be 100 acres, by metes and bounds, as follows : “ Eirst survey containing 100 acres, begining'at a pine, in a meadow, about 300 yards south of Long Branch, (A), running south' 29 degrees, east 179 poles, to a stake, two sweet bays and two water oaks in the edge of the ten mile swamp, (B). Then *north to the*
      *296
      *Mil of the long branch,*(E); then the various courses of the hill of the long branch, to the upper line, (F), thence to the beginning, containing one hundred acres, be the same more or less. The plaintiffs allege that the call of the second line., B, E, is a mistake in the draftsman, and should have been : W. 61 *M. to the MU of the long branch,*which would have carried it to (G). The proofs show that in the original deed from Cox to Brumbie, s-uch was the course, and that by that course tiie hill of long branch was passed at (G); that by running from B to G, 100 acres would be embraced, but that by going to E only about 50 would be the amount; that Brumbie had, for many years, recognized B, G, as the line, and the area B, G, E, had been claimed by Ward, and those claiming under him down to the plaintiff, Sealey, whose deeds all followed the one above described. Brumbie sold all the lands contained in his deeds from Cox, embracing the whole aiea, A, B, 0, D, to the defendant, Joel Britt, not at all noticing the part he had conveyed to Ward.

The deed from Brumbie to Ward, -omits the words of inheritance, necessary to convey a fee simple, which the plaintiff also says, was a mistake, and prays to have that rectified.

The plaintiff alleges that he came in, for a valuable consid-. eration, under Ward by a line of conveyances, describing the land in the same mistaken terms as are embraced in the deed to Ward.

The prayer is that the mistake be corrected by the insertion of the proper course from the second corner, also, that the deed may be corrected as to the words of inheritance, and for general relief.

Brumbie denies that the-mistake exists as to the course of the second line, but as to the omission of the word, heirs, he admits the mistake, and avers his willingness at all times,, to have corrected it. ' ■

Britt, insists in his answer, that he was a purchaser of both these tracts of land at a full price without notice, and there is no proof filed, that he did have notice of the equity of plaintiff.

*297The cause was heard on bill, answers, proofs and exhibits.

*Leiteh*and *M. B. Smith*for the plaintiff.

*Shepherd*for the defendant.

PeaesoN, C. J.

Britt is a purchaser for valuable consideration without notice of the alleged mistake. He paid the price and took a deed for the whole tract, of 200 acres, according to the original boundaries, with a warranty as to the whole tract; so it is hard on him to be obliged to give up the part actually covered by the deed under which plaintiff claims,, and fall back on the warranty. In respect to the-part which the plaintiff alleges ought to be included because of a mistake, he may well take the benefit of the maxim, “when the equities are equal the law must prevail.” The bill must therefore be dismissed as to him.

Bramble, by his answer, makes an issue on the allegation, of a mistake, in respect to the boundary. But as the title has-passed out of him, and vested in Britt, we are relieved from the necessity of deciding this issue, because, in reference to-the title, any correction or deed, which he might be required now to make, would be inoperative and of no effect, and the bill is not framed with a view to any ulterior remedy for breach of warranty. There*is no allegation that the deed under which plaintiff claims contains a warranty, and of course no secondary relief in aid of a resort to ah action at law on a. warranty, if one had been made, can be decreed. The bill must, therefore, be dismissed, as to this defendant, also, so far as it relates to the mistake alleged in respect to the boundary.

The mistake by reason of the omission of words of inheritance being admitted, the plaintiff is of course entitled to a decree against the defendant, Bramble, to have the deed corrected, and as he admits the mistake, and avers a willingness at all times to have corrected it, the plaintiff would have been required to pay the costs according to the course of this Court, but the conduct of the defendant, Bramble, in selling and receiving pay for the same land twice, which he certainly *298did, as to the part of the land not drawn, in question, by the alleged mistake, and his avoiding the question in reference to the mistake, as,to the boundary, by the transfer of the title to his co-defendant, takes from him all right to claim costs.

As the decree dismisses the bill so far as the defendant, Britt, is coñcerned, and, also, as to the defendant, Bramble, except as to the mistake in respect to the words of inheritance the Abjection taken, on the hearing, on the ground of multifariousness is avoided.

Indeed, after the expense and delay of preparing a case for hearing lias been incurred and taken place, the court would not be inclined to put the case off on a ground which does not affect the merits of the controversy.

The bill will be dismissed as to Britt, with costs, and will be dismissed as to Bramble, so far as it relates to the alleged mistake in respect to boundary, without costs; and there will be a decree without costs against the defendant, Bramble, for the execution of a deed with words proper to pass a fee simple estate, so as to correct the mistake in that particular.

Pee Cukiam, Decree’ accordingly.