Statement of the Case.

ises, situated in Uintah mining district, Summit County, Utah Territory, bounded, with magnetic variation, at 17 deg. and 20 min. east, as follows, to wit:

Beginning at corner No. 1 of the Walker and Walker Extension mine, and running thence N. 44. deg. 35 min. west 220 feet to corner No. 2 of said mine, from which U. S. mineral monument No. 4 bears south 46 deg. 10 min. west, at a distance of 158. feet; thence south 21 deg. 15 min. west 196 feet to corner No. 3; thence south 68 deg. 5 min. west 2804 feet to corner No. 4; thence south 44 deg. 35 min. east 216 feet to corner No. 5; thence north 68 deg. 5 min. east 1410 feet to corner No. 3 of the Buckeye mine; thence south 44 deg. 35 min. east along the southerly end line of said Buckeye mine 130 feet to corner No. 4 thereof; thence north 68 deg. 5 min. east 1400 feet to corner No. 1 of said last-mentioned mine; thence north 44 deg. 35 min. west 130 feet to corner No. 2 of said Buckeye mine, the same being also corner No. 6 of said Walker and Walker Extension mine; thence north 21 deg. 15 min. east 190 feet to the place of beginning, together with all dips, spurs and angles, and also all metals, ores, gold and silver bearing quartz, rock and earth therein, and all the rights, privileges and franchises thereto incident, appendant or appurtenant, or therewith usually had and enjoyed, and all the estate, rights, title, interest and property, possession, claim and demand of said party defendant in or to the same.

"2. In pursuance of said contract a deed was made by defendant to plaintiff, bearing date September 1, 1886, wherein and whereby, by mistake and inadvertence in describing the property so contracted for and to be deeded, there was omitted therefrom so much of said property and premises as had been patented by the United States to James Lowe and others as part of lot 42, called the Pinyon and Pinyon Extension mining claim.

"3. That in making said contract and said deed it was the intention of parties plaintiff and defendant to include the premises and property omitted as last aforesaid, and the purchase price thereof was paid and secured with that of the property deeded."

Argument for Appellant.

From the facts so found the court drew the conclusion that the plaintiff was entitled to have its deed from defendant so reformed as to embrace and include in its description of the property to be conveyed all that which was described in the first finding of fact.

From this judgment of the District Court an appeal was taken to the Supreme Court of the Territory, and from the judgment of that court, affirming the decree of the District Court, an appeal was taken to this court.

Mr. A. B. Browne, for appellant. Mr. Charles W. Bennett filed a brief for the same.

I. The complaint, assuming all its allegations to be true, does not state a case entitling respondent to the relief obtained. Under the clear intent of that contract in the event of the representatives and successors in interest of William Jen-. nings failing to join in the deed (and they did so fail) the Wasatch Mining Company was not required to make any deed. until the final determination in its favor of the action against the Jenningses, nor until the Crescent Mining Company paid appellant $42,500. Here, according to the contract, the money was to be paid- not secured merely before respondent would be entitled to demand any sort of a deed.

Now the complaint shows that the action mentioned in the contract is still pending. If at the time of the commencement of this action respondent was entitled to a deed, it must be by reason of some other transaction, some contract between the parties other than that of July the 9th. If there was any other negotiation between the parties, any other contract under which respondent was entitled to call for a deed, it was bound to allege it in its complaint. Failing to do so, the court had no authority to render the decree that it did, no matter how convincing the evidence might be that respondent was entitled to a deed. Crocket v. Lee, 7 Wheat. 522; Carneal v. Banks, 10 Wheat. 181; Harding v. Handy, 11 Wheat. 103; Harrison v. Nixon, 9 Pet. 483; Foster v. Goddard, 1 Black, 506; Ferguson v. Ferguson, 2 Comstock, (2 N. Y.,) 360; Bailey

Opinion of the Court.

v. Ryder, 10 N. Y. 363; Mondran v. Goux, 51 California, 151; Dudley v. Scranton, 57 N. Y. 424; Schofield v. Whitelegge, 49 N. Y. 259; Tooker v. Arnoux, 76 N. Y. 397.

II. If it were conceded that the complaint stated a case entitling the respondent to the relief granted, still there would have to be a reversal, because the court's findings are not within the issues presented by the pleadings.

A court of equity may reform a writing inter partes whenever, either through fraud or accident or mistake, it has been so written as not to express the true agreement. But one may no more be permitted to allege actual, positive fraud as the ground for reformation, and obtain the relief on proof of mistake, than he may be permitted to allege a mistake as the ground for relief and recover on proof of actual fraud. This we understand to be elementary doctrine. It is abundantly settled by authority. Murcier v. Lewis, 39 California, 533; Devoe v. Devoe, 51 California, 543; Mondran v. Goux, 51 California, 151; Morenhout v. Barron, 42 California, 591.

III. In discussing the second assignment of error, we have said all we desire to say in support of the third assignment of error.

Mr. R. N. Baskin, (with whom was Mr. Thomas Marshall on the brief,) for appellee.

MR. JUSTICE SHIRAS, after stating the case, delivered the opinion of the court.

This was a suit brought in the District Court of the Territory of Utah by the Crescent Mining Company against the Wasatch Mining Company for the reformation of a deed, made by the latter to the former, so as to make it embrace and include a certain piece or parcel of land claimed to have been wrongfully omitted from the deed.

Under the act entitled "An act concerning the practice in territorial courts and appeals therefrom," approved April 7, 1874, (18 Stat. p. 27,) if the findings of the District Court. are sustained by the Supreme Court, such findings furnish a

Opinion of the Court.

sufficient statement of the facts for the purposes of an appeal to this court, and our inquiry is whether, upon such facts, the judgment appealed from was right. Stringfellow v. Cain, 99

U. S. 610.

If the plaintiff below contracted to buy of defendant and the defendant agreed to sell to plaintiff, for a valuable consideration, several pieces or parcels of land, and if, in pursuance of said contract, a deed was made by the defendant to the plaintiff, "wherein and whereby, by mistake and inadvertence in describing" the property conveyed, there was omitted therefrom an important part of the property contracted to be sold, and if the purchase price, being a round sum for all the tracts, has been paid, a case for a reformation of the deed was clearly made out, unless, indeed, the defendant should be able to show some good reason why such admitted or established facts are not entitled to their apparent weight.

In the effort to do so, the appellant points to what he contends is a fatal variance between the allegations of the bill of complaint and the findings of fact on which the court below based its judgment. The bill, as he reads it, is restricted to the case of an alleged fraud and conspiracy between the defendant company and one E. P. Ferry, a director and representative of the Crescent Mining Company, whereby the defendant company delivered and Ferry accepted, with a view to cheat and defraud the plaintiff company, a deed not conforming with the contract but omitting an important part of the land sold. And as the court finds, in terms, that the omission was by "mistake and inadvertence in describing the property so contracted for and to be deeded," the contention is that the case is within the scope of well-settled cases, which hold that no decree can be made in favor of a complainant on grounds not stated in his bill.

If this objection is well taken, the complainant was in fault in another very important particular. He omitted to make Ferry a party.

But we think this omission to make Ferry a party really shows that the complainant was not proceeding on a case of fraud and conspiracy between the defendant company and

Opinion of the Court.

Ferry, as the principal ground for relief. The allegations respecting Ferry were to show reasons why the deed was accepted by the plaintiff company, and how the delay to institute proceedings was accounted for. The word "fraud," as a term in legal proceedings, generally, is rather a legal conclusion than an independent fact.

In equitable remedies given for fraud, accident or mistake, it is the facts as found that give the right to relief, and it is often difficult to say, upon admitted facts, whether the error which is complained of was occasioned by intentional fraud or by mere inadvertence or mistake. Indeed, upon the very same state of facts, an intelligent man, acting deliberately, might well be regarded as guilty of fraud, and an ignorant and inexperienced person might be entitled to a more charitable view. Yet the injury to the complainant would be the same in either

case.

The substantial meaning of the cases cited by the appellant is, that the matters alleged in the bill as injurious to the complainant must be those proved on the trial and relied on by the court in awarding relief, and we think that the appellant has no reason to complain of the language of the court below in attributing the appellant's misconduct to mistake and inadvertence, rather than to intentional fraud.

The appellant was too late in making this objection, even if it had been well founded. No such objection was taken in the District Court, when there would have been an opportunity for the plaintiff to amend his complaint, and such an objection was out of place and time when urged as a ground of appeal in this court.

Another assignment of error asks us to reverse the court below, because the complaint does not state a case entitling the plaintiff to any relief. The claim is, that by the terms of the contract between the parties, as set forth in the complaint and shown in evidence, the plaintiff was not entitled to a deed at the time of bringing the action; that the conditions upon which the deed was to be delivered had not yet been performed.

Such a contention seems quite inconsistent with the allega