Gray v. Roden

24 Miss. 667 | Miss. Ct. App. | 1852

Mr. Justice Fisher

delivered the opinion of the court.

This was a bill filed in the vice-chancery court at Holly Springs, to correct a mistake in giving a note for the sum of $4, whereas it should have been for the sum of $400.

The question is entirely one of fact. The evidence to show the mistake is not as clear and satisfactory as that required by the courts to establish mistakes in deeds of conveyance, or other instruments affecting real estate. But if the proceedings had been in a court of law, the evidence was clearly sufficient to uphold the finding of a jury in favor of the complainants. In ordinary transactions of life, this evidence is sufficient. In the case of a note, or other unsealed instrument, the mistake may be shown in a court of law. And in such case, the evidence will be sufficient, if, from all the circumstances attending the transaction, the mistake shall be made to appear as clearly as facts relating to other transactions must be made to appear. Equity is not more stringent in requiring evidence, than a court of law in similar cases. Whatever, therefore, would sustain a verdict in the latter, ought to sustain a decree in like case, in the former.

Decree affirmed.

A re-argument was prayed for by the counsel for the appellant in this case, which was refused by the court, and upon which refusal the following opinion was delivered by Mr. Justice Yer&er.

Upon reexamining this record, we are satisfied that the proof sufficiently shows the mistake in the bill single, as alleged by the complainants.

But it is said, that a bill to correct a mistake in a written instrument cannot be maintained against an executor de son tort. This may be true, as a general principle; but we cannot doubt, that a party having a right of action on a bill single, or other written instrument, against an executor de son tort, may seek the aid of a court of equity to correct a mistake in it, in order that he may recover the actual and true amount of his demand against such executor. Such is the aspect of the present case. Had there been no mistake in the bill single, the complainants could have sued the executor de son tort upon it at law; and we are at a loss to conceive why, in the case of a mistake, the party may not apply to a court of equity to give a decree against such executor for the true amount of his demand, and obtain, for the purpose of that decree, a correction of the mistake.

A re-argument is refused.