Where a written agreement is not in conformity with the actual intention of the parties in a material matter, a court of equity will reform the writing in accordance with the actual agreement if innocent parties will not be affected thereby. The jurisdiction is confined to writings, but as to them it is clear.38 "In the application of this principle, mistakes as to title have been corrected, the word 'heirs' substituted for 'successors,' omission of words of inheritance supplied, a deed reformed to bind a copartnership instead of an individual member, a mortgage in the name of an agent rectified by inserting the name of the principal as mortgagor, and the principal substituted for a trustee who had been mistakenly designated and had bound himself as a contracting party,39 If an instrument which requires a seal is by accident or mistake executed without one, a court of equity may grant relief by compelling a seal to be affixed, or otherwise." 40 An omission of an agreement by the grantee to assume encumbrances,41 or of a reservation in a warranty deed of certain encumbrances42 may similarly be supplied. Equity "will exercise its power to reform instruments, not only as between the original parties, but as to those claiming under them in privity, such as personal representatives, heirs,.assigns, grantees, judgment creditors, or purchasers from them with notice of the facts." 43
37 "If the declarant was, at the time of the declaration [of will] mistaken as to the substance of the same or did hot at all intend to make such a declaration, he may contest the same, when it is to be assumed that he would not have made it, had he known the facts and had considered the matter advisedly. A mistake, relating to such qualities of persons or things, which in intercourse are considered material, shall be regarded as a mistake as to the substance of the declaration." German Civil Code, Sec. 119.
38 Fowler v. Fowler, 4 DeG. & J. 250; Walker v. Armstrong, 8 DeG. M. & G. 631; Hunt v. Rousmaniere's Admr., 1 Pet. 1, 13, 7 L. Ed. 27; Walden v. Skinner, 101 U. S. 577, 583, 25 L. Ed. 963; McMaster v. New York Life Ins. Co., 183 U. S. 25, 46 L. Ed. 64, 22 Sup. Ct. Rep. 10; Philippine Sugar Estates Development Co. v. Government of Philippine Ids., 247 U. S. 385, 62 L. Ed. 1177, 38 Sup. Ct. 513; Andrews v. Essex Ins. Co., 3 Mason,
6, 10; Rogers v. Hinckle, 249 Fed. 548, 161C. C. A. 474; Stone v. Hale, 17 Ala. 557, 52 Am. Dec. 185; Cake v. Peet, 49 Conn. 501; West v. Suda, 69 Conn. 60, 36 Atl. 1015; Dunn v. O'Mara, 70 111. App. 609; Kinman v. Hill (la.), 156 N. W. 168; Miller v. Davis, 10 Kans. 541; Inskoe v. Proctor, 6 T. B. Mon. 311; Canedy v. Marcy, 13 Gray, 373; Gaylord v. Pelland, 169 Mass. 356, 47 N. E. 1019; McGraw v. Muma, 164 Mich. 117, 129 N. W. 20; Wall v. Meilke, 89 Minn. 232, 94 N. W. 688; Mahoney v. Minnesota, etc., Ins. Co., 136 Minn. 34, 161 N. W. 217; Tesson v. Insurance Co., 40 Mo. 33, 93 Am. Dec. 293; Story v. Gammell, 68 Neb. 709, 94 N. W. 982; Smith-Austermuhl Co. v. Jersey Rys. Advertising Co., 89 N. J. Eq. 12, 103 Atl. 388; Albany City Sav. Bank v. Burdick, 87 N. Y. 40; Arlt v. Whitlock, 65 N. Y. App. D. 246, 72 N. Y. S. 522; Kelley v;. Ward, 94 Tex. 289, 60 S. W. 311; Silbar v. Ryder, 63 Wis. 106, 23 N. W. 106.