claims that, notwithstanding this, no reformation of the deed should be decreed, because-First, all the negotiations between the parties relative to the purchase and sale were only as to the lands aside from those in dispute, and was carried on with reference to that only; second, that it was not intended by the parties to include, either in the contract or deed, the disputed premises; third, that the plaintiff accepted the deed, knowing that it did not include the disputed grounds, and gave back a mortgage adopting that description. If these propositions were established it would no doubt be good cause for withholding relief; but we think the testimony establishes the following propositions beyond reasonable doubt: First, that all the negotiations between the parties, up to the time the contract was made, were with reference to the entire property, including that in dispute, and were so understood by both parties: second, that it was intended by both parties to include the disputed premises in that contract; third, that it was the intention of the plaintiff, at the time of receiving the deed, to have the disputed premises conveyed to them as provided in the contract, and it was their understanding that the deed did so convey it; fourth, that this intention and understanding were well known to the defendant at the time of executing and delivering the deed. The testimony shows that the property (including that in dispute) was all the property owned by the defendant, and had always been known and commonly designated as the "Walker and Walker Extension" and "Buckeye Mining Claims;" that the discovery points of both claims were within the disputed grounds; that maps and plats were used by the parties in their negotiations plainly indicating this; that the price agreed upon both with the Jennings party and with defendant was at the rate of five dollars per share of the capital stock of defendant, and this capital stock represented the entire property. In the negotiations the property was often referred to as the property in litigation in the case of the Wasatch Mining Company against Jennings, and it is argued by the defendant that that case only involved the title to the prop erty outside of the property in dispute; but we have no doubt that in these negotiations all the parties regarded this entire property as being in dispute in that case. The reference of the parties to it was not with reference to the technical legal attitude of the case, but as to what was involved in the litigation, and this property was so involved. It is said that the defendant and its officers did not know at the time the contract was made what the particular description was in the Jennings contract, to which they refer, never having seen it. This may be true but the reference to it, in ignorance of its provisions, can only be explained upon one theory; that, intending to convey the entire property owned by defendant, the description was immaterial so far as it was concerned. The fact, as testified by Woodmansee and other directors of the defendant, that the price was $50,000, deducting the shares of stock already owned by plaintiff, leaving $42.500 to be paid, conclusively shows what property was being bought and sold. These shares of stock represented an interest in all the property. In the dealings between the parties this was considered as so much of the property respecting which they were negotiating as already belonging to the plaintiff, and that they were dealing with respect to the balance thereof; and hence the provision in the contract that these shares should not participate in the distribution of the $42,500. There is no doubt that the plaintiff and its officers had not in mind. (if they ever knew) the mistake in originally patenting these claims and the consequent distinction between the claims as located and as patented; and if the defendant, taking advantage of their ignorance, and concealing this fact, has imposed upon them a deed which does not convey what they purchased, it is proper that the deed should be so reformed as to include it. 2 Pom. Eq. Jur., pp. 343, 341, sec. 870; 1 Devl. Deeds, sec. 152; Bisp. Eq. marg. p. 459; Wellas v. Yates, 44 N. Y., 525. The judgment of the district court should be affirmed. ZANE, C. J., and BOREMAN, J., concurred. |