#### Whitmel H. Pugh *v.*William Brittain.

Where a deed describes the land conveyed by metes and bounds, and by mutual mistake of the parties, covers land which the vendor did not intend to sell, nor the vendee to buy, the mistake will be corrected.

This bill was originally filed in Bertie, and alleged that the plaintiff and his brother *Augustine Pugh,*being possessed of a term for years in a tract of land called the Briery Pocoson, contracted to sell it to *William W, Johnston*for $ 2400. That before the purchase money was paid, *Johnston*died, having appointed the defendant his executor — that at the sale of *Johnston’s*effects, the plaintiff mentioned to the defendant the contract of sale, and the amount due him by *Johnston,*who induced him to purchase to the amount of the debt, upon an agreement that the debt due the plaintiff should be set off against the amount of the plaintiff’s purchases — that the plaintiff and his brother, in pursuance of this agreement, offered to assign the term to the defendant, for the use of the next of kin of his testator — but the defendant expressing some doubts as to the solvency of *Johnston’s*personal estate, proposed that the term should be sold by him, as executor, at public sale, as if it belonged to the estate of his testator, and that if it did not bring the sum of g> 2400, which he, the defendant, as executor of *Johnston,*hád paid for it, the assignment should be made directly to him — and that he would stand responsible, as executor, for the purchase money. That the land was, according to this agreement, sold, without mentioning the boundaries, but as a term for years in the Briery Pocoson — that it did not sell for $ 2400, and thereupon, the plaintiff and his brother assigned it to the defendant, with covenants for quiet enjoyment. That in the deed of assignment, the land was described as containing six hundred and forty acres, and the boundaries thereof were set forth — but that it was the intention of the parties thereto, and of the testator, that the plaintiff and his brother should sell only that part of the *35Briery Pocoson to which they had title — that by mistake, the boundaries set forth in the deed covered a tract of land to which the assignees had ño title — that the land thus, by mistake, included within the description in the deed, at its execution, belonged to one *Malachi Chain-herland,*who was since dead — that *Chamberland,*and those under whom he claimed, had been for forty years in possession — that at the sale of the term by the defendant, no idea was entertained of selling the land of *Cham-herland,*neither did the defendant ever think that *Cham-herland*owned any part of the land — that upon a'survey, it turned out that the boundaries of the deed executed by the plaintiff and his brother, covered the land belonging to *Chamberland,*and that the defendant had, upon ascertaining this fact, commenced an action upon the covenant of quiet enjoyment contained in that deed. The bill averred, that the land really owned by the plaintiff and his brother, after deducting from it, as described by the boundaries, that part belonging to *Chamberland,*exceeded in quantity six hundred and forty acres, and prayed an injunction against the action of the defendant.

The defendant, in his answer, stated, that upon examining the will of tiie testator, he found the Briery Po-coson bequeathed by the testator to two of his *sons;*that from thence he inferred, either that the purchase money therefor had been secured or paid — 'that soon after probate of the will, he discovered that he had not assets to pay simple contract debts — he denied that he had persuaded the plaintiff to purchase at tSse sale of his testator’s assets, but stated, that at the sale the plaintiff informed him, that the purchase money for the Briery Pocoson had not been paid, and asked him if iie would set off his, the plaintiff’s, bid for a quantity of corn, against the debt due upon that purchase~that supposing the plaintiff had a bond for the amount, he, without making due inquiry, incautiously consented. That upon, coming to a settlement with the plaintiff, and finding thai; lie had no note or bond for his debt, the defendant refused to comply until he had taken counsel — that after taking advice, being very anxious scrupulously to folffl *36bus bargain, be agreed to allow the plaintiff the debt due him, b.ut for his own indemnity sold the term, as the-property of his testator, intending if it brought more than *$*2400, to give the benefit of the purchase to his testator’s *estate;*and if not, to charge himself with the sum of §$2400, and take the term on his own account. That at the sale thus proposed, nothing was bid for the land ; and thereupon, the plaintiff and his brother conveyed to him, and thus the purchase was forced upon him against his will, and solely to enable him to comply with a hasty pledge given the plaintiff. That the Briery Pocoson was originally leased for a term of years by the Tuscarora Indians to *Thomas Pugh,*the grandfather of the plaintiff, and under whom he claimed, who conveyed one hundred acres thereof to one *Samuel Williams,*by whom it was assigned to *Samuel W. Johnston,*who conveyed to *Chamberland*— that the boundaries set forth in the deed of the plaintiff and his brother, were those described in the original lease to *Thomas*Pugh— that neither he, nor his testator, and as he believed, neither the plaintiff nor his brother, knew any thing of the fact that *Chamber la ml’s*land ivas included within the boundaries by which the plaintiff and his brother conveyed, as the lands were low and subject to inundation, and no survey of them had'ever been made. He admitted an eviction by one *Bartlett,*claiming under *Cham-beriand,*and the pendency of the action upon the covenant, and insisted, that as the plaintiff sold, and ho bought, by the title papers alone, and that the conveyance to him intended to set forth the boundaries of the original lease, there was no mistake in the contract— but he got, and the defendant sold, exactly what was intended. And further, that if the contract was in any way altered, it should be rescinded, and submitted to re-convey to the plaintiff and account for the rents and profits, upon receiving his purchase money, with interest.

Replication was taken to the answer at spring term, 1828, and a survey of the land was then ordered. At fall term, 1828, the cause was “ set for hearing on the bill and answer,” with leave to take testimony — and the *37Survey was then returned ; from which it appeared, that within the boundaries of the plaintiff’s deed to the defendant, there were, without including the lahd belonging to *Chaviberland,*seven hundred and .twOnty-Oric acres. No depositions were filed.

The case was argued at length upon its peculiar circumstances. *Gaston,*for the plaintiff,

cited *Hart*w *Ten Eyck (2 Johns. C. M.*62, 87),.

*Seawell*& *Hogg,*for the defendant,

cited *Jer. Eq, Jwr.*’366. *Mortimer*v. *Capper*(1 *Bro. C. C.*1.56) *Gordon*v. *Gordon*(3 Swans. 467) *Cooth v. Jackson*(6 Ves, . 11, 25) *Leonard*v. *Leonard*(2 *BqllSf B.*17l).

Háxi, Judge.

A replication has been filed in this case to the defendant’s answer; and the'cause is put down for hearing upon the bill, ■answer and survey. The case can therefore be decided for the plaintiffs, only upon the facts which the defendant admits, as responsive to the allegations of the bill. It is therefore important, that those-facts or admissions should be well understood.

His Honor then stated the. substance of the answer as given ahoye, and proceeded: It is therefore the opinion of the defendant, that the plaintiff conveyed land to him, which neither he nor his brother believed was included in the boundaries -set forth in the deed, and which they both knew belonged to another person. The bill is filed to rectify the mistake.

JBut the defendant insists, that as the parties were ignorant of the lines, and had not the means of ascertaining them by a survey, the vendors meant to sell, and he to purchase all the lands described in the deed to the elder *Hugh,*grandfather of the plaintiffs^ — that he looked to the paper title only. If a person was purchasing another’s interest in lands, in no inspect located, there might he some ground for such a claim. Hut in this, case, the parties had a knowledge of the land sol'd, but not of its particular boundaries *;*for the defendant describes it as low, flat land, uncleared and cover's.! with water in the winter. And neither party ever a .'.¡ned, that *í'hamberlarul’s*land was part of it. For it seems *38that Bartlett, who claimed under *Chamherland,*was in actual possession of that land. r

The defendant certainly got a title for less land than tjm boundaries of his deed cover. But deducting the *Chamherland*tract, the deed conveys more land than six hundred and forty acres, the quantity it calls for.

Per Curiam — Injunction eereetuater.