Blandford, Justice.
This was a bill filed to reform a deed upon: the ground of mistake, the deed béin'g voluntary.’ The jury found for defendant, and the plaintiff moved for a new trial, which was overruled by the court, and plaintiff excepted.
1. The first ground in the motion for new trial is,''that the court erred in charging the jury, “ That if there was á mistake in the deed, that the jury must be clearly satisfied on that point. The evidence must be so strong as td leave no reasonable doubt on the mind of-the jury as'to whether it was a mistake or not.”
The rule here laid down is not the one prescribed' by the Code, although it has been thus stated by this court iff *650several decisions. The true rule as to the weight of the evidence required to show the mistake is, that “ the evidence must be clear, unequivocal and decisive as to the mistake.” Code, §3117. The rule which the court laid down is that which the law prescribes in criminal cases before the jury are authorized to convict. Code, §3749. We cannot say that the rule given in charge to the jury put any greater burden on him than the true rule, as taken from the Code, would have done, and that he was hurt thereby, but it is best that the law of the case, when expressed in the Code, be given as expressed to the jury in charge.
2. The plaintiff insists that he was entitled to a now trial under the law and evidence in the case. The defendant says that the plaintiff was not entitled to have the deed reformed, because the mistake was not mutual and relies on §3124 of the Code to sustain this position. This would present a question of some difficulty, if it had not already been decided by this court. In the case of Mitchell vs. Mitchell, 40 Ga., 11" court="Ga." date_filed="1869-12-15" href="https://app.midpage.ai/document/mitchell-v-mitchell-5555194?utm_source=webapp" opinion_id="5555194">40 Ga., 11, it was held that the grantees being volunteers, where the donor made a mistake in the boundary of certain land, that the deed should be reformed, where it was clearly shown that the grantor had made a mistake, though the grantee was not cognizant, of the mistake at the time of the conveyance.
One of the main points in that case relied on by. the grantees was that the mistake was not mutual between donor and donee, and the donee was not present when thé'deed was executed, and relied on the same section of the Code which is relied on in this case. So that it will be seen that the question is identical in both cases. We think that this adjudication settles this point in favor of the plaintiff in error.
3. The testimony submitted in behalf of the plaintiff shows “ clearly, unequivocally and decisively” that there was a mistake in the deed sought to be refoz-med. The testimony of Colonel Hardeman, the defendant and the *651written instructions given by defendant to Colonel Hardeman point unmistakably to tbe mistake in this deed. There is no evidence' to the contrary; so it must be that the verdict of the jury is contrary to law and the evidence, and without evidence to support it, and a new trial should have been granted.
Judgment reversed