conveyance was nothing more than an attempt to make a voluntary deed. It shows an attempt and a failure of the grantors to bestow a gift upon the appellee, not withstanding the allegation that it was made upon a valuable consideration. Where there is any ambiguity in a pleading, it should be construed most strongly against the pleader. Wilson v. Clark, 11 Ind. 385.

In order to sustain the judgment of the court, it must appear from the special findings of fact, or from some one of them, that there was a contract of purchase between the grantors in the deed containing the erroneous description and the appellee, by the terms of which said grantors became in some way legally bound to make the conveyance, so that the appellee, having received this defective deed under said contract, might come into a court of equity and compel specific performance of the contract, or obtain a reformation of the deed as against the grantors or their heirs; but that if the special findings do not show such a state of facts, then the appellee is a mere volunteer, and it is beyond the province and power of a court of equity to grant the relief sought. 1 Story, Eq. Jur. (6th Ed.) § 433; 2 Story, Eq. Jur. (6th Ed.) SS 706a, 7936, 987; Froman v. Froman, 13 Ind. 317; Randall v. Ghent, 19 Ind. 271; Hendry v. Hendry, 32 Ind. 249; Mason v. Moulden, 58 Ind. 1; Schoonover v. Dougherty, 65 Ind. 463.

ZOLLARS, J. Appellee brought this action to have his deed corrected, and his title to the lands described in the complaint quieted, as against all claims by appellant. The deed was made to appellee by his and appellant's father a short time before his death; and it is claimed that, by mistake, the land intended to be conveyed is not described in the deed, but other land, which the father did not own.

The first paragraph of the complaint asks for a quieting of the title, and the second for a reformation of the deed. There is a third paragraph in the complaint, but it is apparent that the finding and judgment in appellee's favor rest upon the first and second paragraphs, if not upon the second alone. The general rule is that where the judgment rests upon two paragraphs, one of which is fatally bad as against the demurrer below, the judgment cannot stand, but must be reversed. Pennsylvania Co. v. Holderman, 69 Ind. 18; Ethel v. Batchelder, 90 Ind. 526; Louisville, N. A. & C. R. Co. v. Lockridge, 93 Ind. 191; Lang v. Oppenheimer, 96 Ind. 47; Caylor v. Roe, 99 Ind. 1; City of Logansport v. La Rose, Id. 117; Rowe v. Peabody, 102 Ind. 198; S. C. 1 N. E. Rep. 353; Walker v. Heller, 104 Ind. 327; S. C. 3 N. E. Rep. 114.

It is contended that the second paragraph is bad, as against the demurrer, because neither the deed nor a copy of it was filed with or in any way made a part thereof. That contention is sustained by the case of Overly v. Tipton, 68 Ind. 410. Upon this point that case has neither been approved nor questioned in subsequent cases in this court, although in some cases the copy of the deed filed with the pleading has, without question by court or counsel, been treated as a part of the pleading. Toops v. Snyder, 70 Ind. 554. The case has support from the case of Plowman v. Shidler, 36 Ind. 484. We do not find it necessary here to enter upon a re-examination of the question decided in the case of Overly v. Tipton, supra. After a careful examination, we have concluded that the merits of the cause have been fairly determined; and that, therefore, under our statute, the judgment should not be reversed simply because a copy of the deed was not filed with the second paragraph of the complaint. Rev. St. 1881, § 345; Sohn v. Cambern, 106 Ind. 302; S. C. 6 N. E. Rep. 813. The failure to file a copy of the deed, if that rendered the paragraph defective, was a matter somewhat formal in its character. It was a defect that would have been cured by verdict, had there been no demurrer, and such a defect as the above statute requires shall be disregarded, where a cause has been fairly determined.

V.9N.E.no.1-8

It is contended, further, by appellant's counsel, that there is no averment in the second paragraph of the complaint showing that the alleged misdescription in the deed was the result of the mutual mistake of the parties; and, notwithstanding the general averment in that paragraph that the deed was made upon a valuable consideration, the special averments show that it was purely a voluntary deed, resting upon no valuable consideration whatever, and, further, that the alleged mistake was one of law, and not of fact. It is averred in the paragraph under consideration that appellee and appellant, Martha, (the other appellant being her husband,) are brother and sister; that their father, Nathan Pyeatt, who owned 1,800 acres of land, was desirous of dividing it among his children, taking into account advancement that each had received, and that a short time before his death, in consideration of natural love and affection, and the sum of $2,600 paid to him, he executed deeds to each one of the children, intending thereby to convey to each a certain and proper portion of the lands; that each one took immediate possession of his or her land so conveyed, or supposed to have been conveyed, and has since paid the taxes thereon, etc. It is further alleged that after appellee had taken possession of the land (describing it) "given" to him, and after the death of the father, he discovered that his deed did not describe his land, but, by the mistake of the scrivener, had been made to describe other lands, (describing them,) which his father did not own; that the land first described, and which he was in possession of, was the land which the father intended to give to him, and the land whieh he, and all the other children, supposed he was receiving.

The use of the word "give" indicates that the land was to be conveyed to appellee as a gift simply; but the use of that word in the way and in the connection in which it is used would not justify a holding that there was not any valuable consideration at all. So far as the conveyance was based upon love and affection, it may be said to have been a gift; but there is a positive averment that the conveyance was made, not only in consideration of love and affection, and by way of dividing the land among the children, but also in consideration of $2,600 paid to the grantor. The averments, taken together, we think, are sufficient subject of consideration to make the paragraph good as against the demurrer. It is settled that, before equity will interfere for the correction of a mistake in a deed, it must be made to appear that the mistake was a mutual mistake, and a mistake of fact, and not of law.

It is shown by the averments in the second paragraph of the complaint, as we have seen, that the father's intention was to divide the whole of his lands among his children; that he did not own the land described in appellant's deed, but did own that which was taken possession of by him subsequent to and in pursuance of the deed to him; that the land so possessed by him was the land which the father intended to convey to him, and that which he, and all the other children, supposed he was receiving; that the deed does not describe the land thus intended to be conveyed, and which appellee supposed he was receiving, but, by the mistake of the scrivener, was made to describe other lands, which the father did not own; and that appellee did not discover the mistake until after he had taken possession of the land, and after the death of his father. These averments clearly show that the deed is not as the parties intended it should be, because it does not describe the land which the father intended to convey, and which appellee supposed was being conveyed, to him. It is thus made apparent that the description in the deed is the result of a mistake, and that mistake was mutual upon the part of grantor and grantee, as their purpose was to have such a description in the deed as would properly describe and carry the lands which appellee subsequently possessed; and thus, too, it is made to appear that, but for their mutual mistake, and the mistake of the scrivener, the land intended to be conveyed would have been properly described.

It is not averred that the grantor did not know what description was inserted in the deed, nor, indeed, is it averred that appellee was ignorant of the description so inserted. It is averred that he did not discover the mistake in the description of his land until after he had taken possession of it, and until after the death of his father; but this does not amount to an averment that he was ignorant of the description actually inserted in the deed. It must therefore be assumed, as against the pleader, that both appellee and the father, at the time the deed was executed, knew what description was inserted therein. What, then, was their mistake? Was it a mistake of fact? And, if so, was it such a mistake as will warrant a reformation of the description by a court of equity? Or was it a mistake of law, against which equity will afford no relief?

In our judgment, the mistake was in no sense a mistake of law, because, as a matter of law, the description in the deed was sufficient to have carried the land described, had it belonged to the father. It will be found, upon a close examination of the cases, that the mistakes denominated "mistakes of law" were cases where the descriptions used were so defective as to convey nothing, and that the mistakes of the parties were in supposing them to be sufficient; in other words, mistakes as to the legal sufficiency of the description used. It was held in the case of Armstrong v. Short, 95 Ind. 327, that the mortgage could not be reformed because the descriptions of the lands were defective and insufficient, and because the mistake was as to the legal sufficiency of the description, and therefore a mistake of law. The same may be said of the case of Easter v. Severin, 64 Ind. 375; S. C. 78 Ind. 540.. See, also, Nelson v. Davis, 40 Ind. 366: Nicholson v. Caress, 59 Ind. 39: Heavenridge v. Mondy, 49 Ind. 434.

The mistake here, we think, was a mistake of fact. The purpose was to describe a tract of land owned by the father, and which he intended and was attempting to convey to the son. The mistake was in applying to that tract a description that did not describe it at all, but an entirely different tract. They supposed that the description used in the deed described the tract intended to be conveyed, and in that they were mistaken. Whether or not the description used covered the tract intended to be conveyed, we think, was a question of fact, and as to that fact there was a mistake. It was a fact, too, about which the parties might easily be mistaken, without being guilty of such negligence as ought to defeat a reformation of the deed. We find in some of the cases these statements: "It must be shown that words were inserted that were intended to be left out, or that words were omitted which were intended to be inserted." Heavenridge v. Mondy, supra; Easter v. Severin, supra; Allen v. Anderson, 44 Ind. 395; Baldwin v. Kerlin, 46 Ind. 427. It is not alleged that anything was omitted in the deed that was directed to be inserted, or that anything was inserted, by mistake or otherwise, contrary to the directions of the parties. Nelson v. Davis, supra. We do not question the correctness of these statements, as applied in the above case, from which we have taken them, nor as applicable generally, in actions for the reformation of written contracts; but feel sure that they should not be so applied, in a case like this, as to require a holding that there can be no reformation of the description in a deed, unless it is made to appear that particular words of description were inserted that were intended to be left out, or that particular words were omitted which were intended to be inserted. Nor should it be held that there can be no reformation of the description in the deed, unless it is made to appear that, at the time the deed was executed, the parties were ignorant of what that description was. To so hold, and to apply the above-quoted statements literally, would be to deny relief in the larger number of cases of mistakes.

Although a deed might not contain a correct description of the lands intended to be conveyed, yet, if the particular words of the description are not

those intended to be left out, or those left out are not those intended and directed to be inserted, there could be no relief. And so, if the parties, able to read and understand, should execute a deed without ascertaining its contents, they might be met with the statement, as contained in some of the cases, that they were guilty of such negligence as to forbid equitable relief for the correction of the mistake.

As to the mere words of the description, in the case before us, it may be said, in the general language of some of the cases, that there was no mistake, and that the deed in that regard is just as the parties at the time it was executed intended it to be. But the mistake is back of that. The words of description may be as the parties at the time consented they should be; but that consent was the result of a mistake,—not a mistake of law, nor a mistake of judgment, but a mistake of fact, in that the parties mistook the description used in the deed as being applicable to and as covering the land intended to be conveyed. Here is the land, and here a description. Parties may readily be mistaken in locating the land from the description, and so, from several descriptions, they may readily mistake in selecting that which is applicable to and that covers the land to be conveyed. In either event, and equally, the mistake is one of fact, and not of law. Courts of equity do not interfere to correct errors in phraseology, nor to eliminate or add words to a contract, simply because they may have been added or omitted by mistake, unless they are important and essential to the contract between the parties. Equity looks to the substance, and lends its aid to reform written contracts, and thus make them conform to and express the real contract as the parties intended and agreed.

The transaction between the father and children was a family arrangement, (Bouv. Law Dict.;) and, as between the children, in the nature of a family settlement and partition. Each child went into the possession of the land conveyed to him or her, and has since held that possession as the owner, and all, except appellee, as the owner of the legal title. All of the children, except appellant, Martha, upon the discovery of the mistake in appellee's deed, in consideration of the fact that they held and possessed in severalty the portion of the land conveyed by the father, made quitclaim deed to appellee for the land possessed by him. Appellant possesses and holds in severalty the land conveyed to her, and, while thus holding, is claiming as an heir, and attempting to recover from appellee a portion of the land set apart to him by the father, and to which he would have the legal title but for the mistake in his deed. But for the family arrangement, and the consequent deed to appellant and the other children, appellee, as an heir of his father, would be entitled to an equal share of all the lands. If appellant may hold on to what she has by virtue of that settlement and the deed to her, and share in the portion which was intended for appellee simply because of the mistake of the parties in inserting a wrong description in his deed, so might the other children, if they had chosen to do so. The result would be that the other children could hold, as against appellee, what was conveyed to them, and, by sharing in what was intended for him, reduce his share to almost nothing.

A court of equity would be impotent, indeed, if it could not interfere to correct the mistake in appellee's deed, and prevent the consummation of the attempted wrong. It was alleged and found by the court in the case of Bush v. Hicks, 60 N. Y. 298, that the plaintiff had contracted to sell to the defendant a certain tract of land, and furnished a description to the scrivener to be inserted in the deed. The description, although at the time thought to be correct, was not, because it embraced land not included in the contract between the parties. The parties were mistaken as to the correct description of the land intended to be conveyed. The court said: "It is claimed that as the plaintiff knew the terms of the description inserted in his deed, and as the language employed was that intended to be used, there was no mistake. The

answer is that the mistake consisted in supposing the description applied to the land intended to be conveyed, whereas it embraced much more. A mutual mistake of this character is a ground for reforming a deed in equity. The counsel is mistaken in supposing that a deed can be reformed only in cases where the mistake consists in the omission or insertion of words or clauses contrary to the intentions of the parties. Although the parties understood what language was contained in the deed, if they believed the description corresponded with the actual boundaries of the land intended to be conveyed, and were mistaken, the case for a reformation was made out." See, also, Burr v. Hutchinson, 61 Me. 514. And so, in one of our cases, it was said: "A party may not carelessly sign a contract, and then obtain its reformation in respect to its terms and conditions; but to say that, in respect to the mere description of the subject-matter of the contract, (the property intended to be conveyed,) * * * there can be no relief unless particular words of description had been agreed upon, and others used by mistake in their stead, and unless the mistake was of such a nature that the party could not, by reasonable diligence, obtain knowledge of it, when put upon inquiry, would in many, if not in most, instances be to deny relief entirely."

The act of making or accepting a deed or contract puts the party upon instant inquiry; and so the making of a mistake, because necessarily, as indeed in most cases doubtless it is in fact, an act of negligence,-a failure to exercise reasonable care; so that, under the rule contended for, the fact which ordinarily makes relief necessary makes it impossible. There can be no good reason, as it seems to us, for refusing to correct mutual mistakes in matter of description, on account of the negligence which caused the mistake, so long as equal or superior rights of third parties have not intervened.

We are constrained to hold that while the second paragraph of the complaint is, perhaps, not as specific as it might be, it is sufficient to withstand the demurrer.

Upon the proper request, the trial court made a special finding of the facts, the substance of which is that Nathan Pyeatt died in July, 1879, leaving seven children, two of whom are appellant and appellee; that on the second day of that month he was the owner of lands, a part of which was that in the controversy here, being that since occupied by appellee; that for the purpose of making an equal division of his property among his children, taking into consideration advancements that had been made, he executed conveyances to them of all, or about all, of his real estate, conveying to appellant 272 acres, of which she took and has since held possession; that he made a conveyance to appellee, and at the time intended and declared his intention to convey to him the land here in dispute, but, in giving to the scrivener the description of the land so intended to be conveyed, by mistake gave a wrong description, and a description of land he did not own, and that the deed was made with such erroneous description by the mutual mistake of the parties; that at the time of and in the making of the several conveyances he took into consideration all previous gifts and advancements to the several children, their labor done and services performed by them for him after their majority; that appellee lived nearer to him, and rendered more services to him, than the other children, and especially during the latter years of his life; that at the time of the conveyance to appellee he expressly recognized the existence of an obligation for such services; that appellee did not render the services with a view to any particular or specific compensation other than as his father might deem proper; that in consideration of such services, and in consideration of love and affection, and as a family settlement to make an equal divide among the children, he made the deed to appellee, intending thereby to convey to him the land here in controversy; and that since his death the other children, except appellant, have made deeds to appellee for the land so intended to be conveyed to him.