Page:Federal Reporter, 1st Series, Volume 1.djvu/307

TUENiSB V. HABT. 209 �a title, but to authorize such a reformation it should be shown that the parties had distinctly in their minds what was intended to be conveyed. For instance, if the deed be 100 acres out of a 500 acre tract, evidence might be intro- trodued to show which 100 acres was to be included ; but if, at the time the deed was executed, no particular portion of the tract was intended to be conveyed, I do not see how it la possible, by paroi evidence, to sustain the deed, unless it be considered that the parties were to be tenants in common — the grantor of four-fifths and the grantee of one-fifth. The evidence in this case not only seeks to go outside of the Brooks land of 263 acres, but to include other lands formerly belong- ing to the Brooks heirs. It, therefore, not only contradicts the deed, but fails to locate or describe definitely the land intended to be conveyed. �Mr. Allen, one of the mortgagees, testified that he thought when the mortgage was executed that it covered a part of the Brooks tract reputed to belong to J. B. Hart, in the Diamond Island Bend : "I understood that the land was one traet, and, I thought, conveyed to Hart as one tract, known as the Brooks tract, and conveyed by the Brooks heirs. I intended, and I thought Mr. Hart intended, that the mortgage should be on 100 acres of the entire land owned by Hart, and I so believed. I did not know that Hart held his land in Henderson county under more than one deed. I can't say that I ever saw any title papers conveying this land to Hart, and I believe my information is altogether hearsay. I have for years past heard him claim land in the Diamond Island Bend, and my recollection is that it was about 300 acres, and it was called 'the Brooks tract.' And I have no recolleefcion of hearing it called by any other name." �Mr. Hart, the mortgagor, says : "I owned three tracts of land, containing, according to my deeds, 434|- acres, less 100 acres sold off. The three tracts originally belonged to one Brooks, who had conveyed by title bond the 50 acre tract to one Carson. I bought two tracts from the Brooks heirs and the other tract from Carson's heirs, and I held and con- sidered the three tracts as one trac^ nnder the name of the ��� �