#### MAUDE RAE REYNOLDS v. GEORGE T. WOOD and Wife, BESSIE M. WOOD.

(Filed 21 May, 1941.)

1. Reformation of Instruments § 3 — Evidence held insufficient to support finding that description was inserted in deed through mutual mistake.

Evidence that the grantee desired to purchase the particular lot which was described in her deed, and that, at the time she offered to purchase, the parties thought that grantors owned the lot, without evidence that the parties had gone on the premises or that they had mistakenly inserted the description of the lot intended to he conveyed, is insufficient to support a finding that the parties intended to describe another lot in the subdivision to which, grantors had title, and grantors are not entitled to reformation for mutual mistake of the parties.

*627
      *2.*Courts § 2a—

Where the only exception is to that part of the judgment of the municipal court relating to the allowance of the defendants’ counterclaim, the Superior Court upon its determination that judgment on the counterclaim was erroneously allowed, is limited to remanding the case to the municipal court for proceedings therein in accordance with the judgment of the Superior Court.

Appeal by defendants from *Pless, J.,*at January Term, 1941, of Guilfobd.

Modified and affirmed.

*Julian G. Franklin for plaintiff, appellee.*

*Walser & Wright for defendants, appellants.*

DeviN, J.

Plaintiff instituted ber action in tbe municipal court of tbe city of Higb Point for tbe recovery of $350 wbicb sbe alleged sbe paid defendants for tbe conveyance of a city lot, designated as No. 198 and described in tbe complaint, to wbicb lot sbe alleged defendants bad no title. Tbe defendants admitted they did not own lot No. 198 described in tbe deed, but set up, as an affirmative defense or counterclaim, tbat there was a mutual mistake in tbe description in tbe deed, and tbat tbe plaintiff intended to purchase and tbe defendants intended to convey lot No. 196 in tbe same division, wbicb lot tbe defendants did own, and asked for reformation of tbe deed in accord with tbat intention.

In tbe municipal court jury trial was waived, and it was agreed tbat tbe judge should find tbe facts. From tbe evidence offered tbe court found that there was a mutual mistake in tbe deed, and tbat tbe parties intended tbat lot No. 196 be described instead of lot No. 198, and thereupon overruled plaintiff’s motion to dismiss tbe counterclaim, and ordered tbe deed reformed as prayed. To this finding and judgment tbe plaintiff noted exception and appealed to tbe Superior Court.

In tbe Superior Court it was adjudged tbat there was no evidence to support tbe finding tbat tbe description of tbe property in tbe deed as lot No. 198 was inserted by mutual mistake, or tbat tbe parties intended to describe lot No. 196 instead of No. 198 as expressed in tbe deed.

Tbe appeal of tbe defendants brings this ruling of tbe court to us for review, and requires an examination of tbe testimony offered in tbe municipal court to determine whether there was any evidence to support tbe finding tbat there was a mutual mistake in tbe deed as asserted in defendants’ counterclaim. Upon such examination we are led to tbe conclusion tbat tbe ruling in tbe Superior Court was correct. We do not think there was evidence to support tbe finding tbat there was a mutual mistake in tbe description of tbe lot conveyed so as to entitle tbe defendants to tbe equity of reformation. All tbe evidence is to tbe effect tbat *628the plaintiff wished to purchase lot No. 198 and not lot No. 196, and that she had no intention of purchasing lot No. 196. There is no evidence that the parties had gone upon the premises, or that they had mistakenly inserted a different description of the lot intended to be conveyed. At the time plaintiff offered to purchase lot No. 198 it was erroneously supposed that defendants owned that lot. There was no meeting of the minds of the parties as to the purchase of lot No. 196, and plaintiff did not agree to purchase that lot, and does not wish to do so. The court cannot, under the guise of reformation, enforce a contract which the parties themselves have not made.

“A person who seeks to rectify a deed on the ground of mistake must establish, in the clearest and most satisfactory manner, that the alleged intention to which he desires it to be comformable continued concurrently in the minds of all parties down to the time of its execution.” *Long v. Guaranty Co.,*178 N. C., 503, 101 S. E., 11; *Sills v. Ford,*171 N. C., 733, 88 S. E., 636.

As the exception to the judgment of the municipal court related only to the defendants’ counterclaim, the judgment of the Superior Court should have been limited to remanding the case to the municipal court for proceeding in that court in accord with the judgment of the Superior Court. *Bernhardt v. Brown,*118 N. C., 701, 24 S. E., 527.

Except as thus modified, the judgment of the Superior Court is

Affirmed.