Appeal, No. 137 | Pa. | Oct 13, 1902
Opinion by
The jurisdiction of equity to reform a deed which by mistake fails to express the intention of the parties at the time is unquestionable : Cook v. Liston, 192 Pa. 19" court="Pa." date_filed="1899-05-23" href="https://app.midpage.ai/document/cook-v-liston-6245378?utm_source=webapp" opinion_id="6245378">192 Pa. 19; Stafford v. Giles, 135 Pa. 411" court="Pa." date_filed="1890-05-26" href="https://app.midpage.ai/document/stafford-v-giles-6239971?utm_source=webapp" opinion_id="6239971">135 Pa. 411. It is, however, a power to be exercised with great caution to avoid infringing upon the statute of frauds, and only in very clear cases, especially where parties are witnesses and the decree must rest even partially on their testimony.
In the present case, however, the evidence is ample.
We have in the first place the insertion of the unusual word “ surface ” in the grant, and the fact that it was interlined by the scrivener in the presence of the parties at the time of the execution of the deed. This in itself is evidence tending to show that something different from the ordinary conveyance of the whole land was in the contemplation of the parties.
This inference is corroborated by the positive testimony of the complainant and his brother that the bargain was for the land excepting the coal; the testimony of the scrivener that the deed bv his mistake was not written as it should have been on a blank containing a reservation of the coal, and that the word “ surface ” was interlined with the intention of supplying that omission; and the testimony of the scrivener and another witness, Lazarus, that the defendant on several subsequent occasions admitted that he had not bought the coal. Against this
The decree, however, is somewhat too broad in form. There is no evidence that any minerals were intended to be reserved except the coal, or that there was to be any other variance from an ordinary conveyance of the fee. The new deed, therefore, which the decree directs the plaintiff to make and the defendant to accept, should not be for the surface only but in the ordinary form for the conveyance of the entire fee in the land, with a reservation of the coal in the usual form. The decree moreover should be made with an express saving of all intervening rights. So amended the decree is affirmed, costs to be paid by the appellee.