| Mich. | Apr 13, 1869
The complainant files his bill to enforce the specific performance of a contract by which Allen agreed to convey to him a parcel of land, and Franklin Tooley, a certain other. parcel, in exchange for hotel premises owned by complain- . ant, and then occupied by one Granger. The contract was in writing, and the land to be conveyed by Franklin Tooley was therein described as the south west quarter of section fifteen, in township six north of range eleven west, excepting therefrom 60 acres previously sold off from the west side; but the complainant avers in his bill, that the true description was the south east quarter of said section, except, &c.; the word west being written in the contract instead of east by the mistake of the person drafting it; and the complainant asks that for the purposes of this suit the contract may be treated as if it read as it was intended
Noah Tooley is made party defendant as a subsequent grantee of the premises which complainant alleges were to be, and should have been included in the contract, and he is charged in the bill with haying received a deed of the premises with knowledge of the contract and in fraud of complainant’s right. This charge is denied by answer.
The question whether a material error in a written contract for the conveyance of lands can be corrected on parol evidence, in a suit for the specific performance of the contract, and performance decreed according to the understanding as found upon such evidence, is one of no little difficulty, and upon which the authorities are irreconcilably at variance. If it can be, the evidence of the mistake upon which the court should give relief ought to be so clear as to establish that' fact beyond cavil. No such clear evidence appears in this case, but, if we find the mistake at all, it must be upon inferences which are not of a very satisfactory character.
If, however, the mistake were clearly established as against Franklin Tooley, the complainant must still fail, because there is no evidence in the case which brings home to the defendant Noah Tooley a knowledge of such a contract as is set out in the bill. As to him, the contract is neither admitted nor proved; and as the exchange of complainant’s place for the two farms was one entire contract, and not capable of severance, it is impossible that he should have relief. Without, therefore, investigating the various other objections which are made to the relief sought, a decree must be entered affirming the dismissal of the bill with costs.