| Mo. | Oct 15, 1865
delivered the opinion of the court.
This is an action to foreclose a mortgage. The plaintiff alleges that the mortgage was executed by A. R. Seal and wife to James Raekliffe. The mortgage deed begins by stating that it is made “ by and between Amer R. Seal and Elizabeth J., his wife, of the first part, and James Raekliffe, of the second part; and after acknowledging the receipt of the consideration, it proceeds to grant, bargain and sell to the said Seal, his heirs and assigns, and the habendum is to have and hold, <fec., to the said Seal, &c. The conditions then go on to recite certain notes due by Seal to Raekliffe, and says that the deed was intended to secure the payment of these notes, and provides that it shall become void upon the payment of the notes, but otherwise to remain in full force.
The defendant Ogle comes in and asked to be made a party defendant, setting up a deed of trust executed by Seal to himself for the same land described in the plaintiff’s mortgage, and subsequent in date to the plaintiff’s mortgage, and also denying the validity of the plaintiff’s mortgage. The court below found for the plaintiff, and the case comes here by error.
The principal question presented to this court is, whether the instrument of writing relied on by the plaintiff had the effect to vest the title to the real estate therein described in the plaintiff for the purpose of securing his debt. If this was a mere matter of construction, where the real intention of the parties is to govern, it would seem that the court be low was correct; for it seems very plain that the intention
But a distinction is taken between construing a contract that admits of construction and correcting a mistake. Courts of law will construe a contract and give it that meaning which the parties intended it should have; provided such a construction can be put upon the contract without doing violence to the language used in the contract. But courts of law cannot correct the mistakes of the parties; as, for instance, in the case at bar, where they intended to use one word and used another. In such cases courts of equity, upon a bill filed for that purpose, will correct the mistake, and afterwards the instrument so corrected will be regarded as the contract made by the parties.
This perhaps might be done, and a decree had to sell the defendant’s equity of redemption in the real estate in the same bill under our practice. But it would certainly require allegations as to the mistake, and a prayer to have the contract reformed, and the court ought to decree the correction before the judgment of foreclosure is allowed. • This not having been done, the mortgage was improperly read in evidence against the objections of the defendant. It was not the instrument set out in the petition, and'-the variance was fatal. -
The case is reversed and cause .remanded,-