110 Ill. 290 | Ill. | 1884
delivered the opinion of the Court:
This was a bill in equity, brought by the Sandoval Coal and Mining Company, against Samuel Ewing, to correct a mistake in a deed executed on the 6th day of November, 1877, by Samuel Ewing, to Ozias Townsend, in trust for the St. Louis and Sandoval Coal and Mining Company. The deed conveyed the exclusive right to mine and excavate for coal, and to remove the same under and beneath the east half of the north-west quarter of section 17, township 2, north of range 1, east of the third principal meridian, in Marion county, and it is alleged in the bill that it was the intention to convey the east half of the north-east quarter of section 17; that the scrivener by mistake inserted in the deed, “east half of the north-west quarter of section 17, ” when the grantor and grantee intended to insert in the deed, “east half of the north-east quarter of section 17. ” The defendant put in an answer to the bill, and the court, on the hearing, found that all the material allegations of the bill were sustained by the evidence, and rendered a decree as prayed for in the bill, to reverse which the defendant sued out this writ of error.
It is first contended that the decree is erroneous because the allegations and proofs do not agree. In proceedings in equity, as a general rule, the proofs and the allegations of the bill must correspond, and a party will not be entitled to relief, although the evidence may establish a clear case in his favor, unless there are averments in the bill to support the case made. (Morgan v. Smith, 11 Ill. 194.) But upon an examination of the allegations of the bill, and the evidence introduced in support of those allegations, we find no substantial variance upon any material averment. A mistake in the description of the land embraced in the deed is alleged, and that is established by evidence. It does not militate against the decree that the mistake was established in part by parol evidence. Upon this point, Story, see. 156, says: “We must therefore treat the cases in which equity affords relief, and allows parol evidence to vary and reform written contracts and instruments upon the ground of accident and mistake, as properly forming, like cases of fraud, exceptions to the general rule, which excludes parol evidence, and as standing in the same policy as the rule itself.” A deed or other instrument of writing should not be reformed unless the evidence of mistake is clear and positive,—or as said by Story, sec. 157: “Belief will be granted in cases of written instruments only where there is a plain mistake, clearly made out by satisfactory proofs.”
But it is said that the court erred in decreeing more relief than the allegations of the bill and prayer asked, in this, that the decree authorizes complainant to enter upon defendant’s land and sink a coal shaft. The right to mine coal on the land was conveyed by the deed, and the right to go upon the land and dig for coal passed as an incident to the conveyance. We do not think it was necessary for complainant’s bill to contain a special prayer for a decree authorizing him to go upon the land. That followed as a matter of course. When the mistake was corrected the deed conferred the right to go upon the land and mine the coal, as specified in the deed. But even if it was necessary for the complainant to pray for relief of this character, the prayer -for general relief was all that was required.
In conclusion, we think the evidence fully sustains the decree, and we perceive no substantial error in the record. The decree of the circuit court will be affirmed.
Decree affirmed.
