Ramsey v. Smith. hands of the complainants for their indemnity, was omitted from the deed by mistake, and it prays that the deed may be reformed in that respect by the insertion of apt words for the purpose, and that the defendant may be restrained from prosecuting the action at law. On the filing of the bill, an injunction was granted. The defendant has answered the bill, and now moves to dissolve the injunction. The equity of the bill is based on an alleged agreement on the part of Mrs. Smith to leave the principal of her property in the hands of the trustees for their indemnity against liability under their bond to her husband, in consideration of which agreement the trustees gave the bond, and without which they say they would not have given it. The bill prays that the deed from Mrs. Smith and her husband to the trustees may be rectified by the insertion therein of such a provision. The claim to that relief is based on the allegation that the provision was omitted from the deed by mistake. The bill does not state that the omission was by the mutual mistake of the parties, but that such was the understanding, and that it was communicated to the lawyer by whom the deed was drawn, who, through mistake, omitted it. The affidavit annexed to the bill is to the same effect. Unless the omission was by mutual mistake the deed will not be reformed by inserting the provision. The defendant swears that there was no such understanding or agreement, and that there was no mistake; that the deed was, when it was executed, regarded by the parties as so exactly expressing their intention that a conveyance of the property from the trustees to Mrs. Smith, which had been prepared by the lawyer to be executed simultaneously with the deed, was not executed because it was deemed unnecessary. The complainants, it is true, in their affidavit annexed to the bill, swear to the existence of the agreement, and that the provision embodying it was omitted by mistake from the deed; but, as before mentioned, they do not swear that the omission was through mutual mistake. It is worthy of remark that their bill is not fortified by the affidavit of the Ramsey v. Smith. lawyer who drew the deed. His affidavit, however, to the contrary, denying that there was any such agreement, and, of course, that there was any mistake, is appended to the answer. He resides and practices his profession in the county of Hunterdon, the same county in which the complainants reside. His affidavit, attached to the answer, can not be considered on this motion, the bill being verified by the affidavit of the complainants alone. Merwin v. Smith, 1 Gr. Ch. 182; Gariss v. Gariss, 2 Beas. 320; Mulock v. Mulock, 11 C. E. Gr. 461. The absence of his affidavit in verification of the bill is, however, noteworthy. On the affidavits of the parties, and the statements in their respective pleadings, the case stands thus: The existence of the agreement is affirmed by the complainants and as positively denied by the defendants; neither the bill nor the affidavit attached to it states that the alleged mistake was mutual; the defendant denies that there was any mistake. One who seeks to rectify an instrument on the ground of mistake must be able to prove not only that there has been a mistake, but must be able to show exactly the form to which the deed ought to be brought in order that it can be set right according to what was really intended by the parties, and must be able to establish, in the clearest and most satisfactory manner, that the alleged intention of the parties to which he desires to make it conformable, continued concurrently in the minds of all parties down to the time of its execution. Kerr on F. & M. (Am. ed.) 421. It is not enough to show that the alleged omission was contrary to the intention of the complainants; it must also be shown incontrovertibly that it was contrary to the intention of both parties. Thompsonville Scale Manufacturing Co. v. Osgood, 26 Conn. 16; Nevius v. Dunlap, 33 N. Y. 676; Kerr on F. & M. (Am. ed.) 409. On the case, then, as made by the bill, no decree of rectification would be made, because it is not averred that the alleged mistake was mutual. But the complainants insist Doughty v. Doughty. that the relief sought by the bill ought to be granted on the JONATHAN DOUGHTY v. AMANDA M. DOUGHTY. The evidence of a husband in a divorce suit is not competent to prove his wife's adultery, nor to prove her handwriting on an intercepted letter to her alleged paramour; nor are statements of such paramour, made in defendant's absence, competent. Bill for divorce. On final hearing on pleadings and proofs. Mr. S. H. Grey, for complainant. Mr. D. J. Pancoast, for defendant. THE CHANCELLOR. The bill is for a divorce a vinculo. It charges adultery, committed on different days in October and November, 1877, and at divers other times with certain persons in Philadelphia; and in this state with divers persons whose names are unknown to the complainant; and particularly on the 9th of February, 1878, at Atlantic City, with Henry Furman. The defendant answered the bill. The answer denies the charges, and alleges that in March, 1878, the complain Doughty v. Doughty. ant deserted the defendant and his children, and left them without support. It also charges the complainant with adultery. The defendant has offered no proof, but she insists that the proof presented by the complainant is not sufficient to entitle him to a divorce. The parties were married in Philadelphia, in 1861. They lived in Atlantic City in 1877 and 1878, and the complainant has resided there ever since. He kept a hotel there. Henry Furman was bar-keeper for him in it in the summer of 1877. In the spring of 1878, Furman, who was not then employed by the complainant, but was living elsewhere, paid a visit to the hotel during the temporary absence of the complainant from home. The latter appears to have returned unexpectedly while he was there, and a scene of violence occurred, in which Furman was, early in the morning, driven by the complainant from the complainant's house (where he had passed the night), clothed in his night-dress, and sought protection and shelter in the town, stating in the hotel and in the town, that the complainant had caught him in bed with his wife. At the same time the defendant was beaten by the complainant, because, according to her statement, he found her in the room of a man who was in bed, where she said she had gone to put out a light which she saw burning there. She said that the man left his clothes. Charles H. Senn, one of the complainant's witnesses (he was his barkeeper at the time), swears that he slept in a room on the same hall on which the room in which Furman slept was, and that, as he came down in the morning, he passed the room of the latter, and saw a light burning in it. This was before the fracas occurred. From the testimony of Caroline Leeds, one of the defendant's intimate friends, who was called by the complainant, but who appears to have been a somewhat unwilling witness, there seems to be no reason to doubt that the transaction to which the defendant referred was that in which Furman was driven from the house, and that her husband inflicted violence on her because he found her with Furman in the room in . Doughty v. Doughty. which the latter slept. But in what situation he found them does not appear by any competent evidence. That an improper (and perhaps criminal) intimacy existed between her and Furman at the time, is evidenced by the fact that he wrote letters of a highly improper character to her in January, 1878, from Trenton, where he was employed, addressing them to her by a false name, at her request. Some of these letters were intercepted. They were called for and obtained at the post-office in Atlantic City by the complainant. It does not appear that the defendant received any of those which are produced. She called at the post-office for letters addressed to that name, however, and falsely stated that they were intended for a servant in the hotel. And she received one or more letters so addressed. Furman, who was sworn for the complainant, refused to answer whether he had had criminal intercourse with the defendant, basing his refusal on the ground that his answer would criminate him, and adding an expression of his determination not to furnish evidence against her in that respect. His replies, however, had no reference to the transaction at the hotel. He was not inquired of as to that occasion. I do not find in the case the evidence on which I ought to base a decree of divorce. The necessary amount of legal proof is not produced. With the husband's testimony, if that were competent, it would be otherwise. But it is not competent on the subject of the adultery or to prove the letter which he swears is in the handwriting of the defendant. It is competent to prove nothing but the marriage. Rev. p. 378 § 5; Marsh v. Marsh, 2 Stew. 296. The statements of the alleged paramour are not competent evidence against the defendant. They were not made in her presence. His letters to her, while under the circumstances they show a highly improper intimacy, do not prove adultery. No letter of hers to him is properly in evidence. The letter before referred to, and which the complainant swears is in her handwriting, is not proved by Furman or any one else except the complainant. Furman says he |