This action is brought to correct the description in a deed for timber executed in 1892 by plaintiffs to II. L. Pope, which is as follows:
“Bounded by the lands of James Warwick, Redet Carr, Dr. Benton, and Calvin Bowden, being the same property deeded to me from J. D. Packer and wife, registered in Book 43, page 513, etc., containing 75 acres, more or less. Timber to be cut 12 inches and upwards across the stump.”
The defendant acquired title by mesne conveyances, and on 21 December, 1'906, the timber being uncut, purchased from plaintiff an extension of time, evidenced by extension deed duly *497executed, and under that contract defendant has proceeded to cut the timber not only on the 75 acres, but on the entire land described in the Packer deed.
The allegation of the complaint upon which the Pojte deed is sought to be reformed is as follows:
“That said deed calls for only 75 acres of timber on a tract of 216 acres, said 75 acres lying on the south end of said tract and at the time of the exécution of said deed to said Pope, cutting off from said 216-acre tract the 75 acres of land upon which the timber was sold. That in drawing the deed for said timber, through the inadvertence of the draftsman, the boundaries of said 75-acre tract were left out, and while said deed calls for only 75 acres, yet the description therein covers all of the lands of the plaintiffs. Said error was not known to the plaintiffs until a few days prior to the commencement of this action, and was due to the mutual mistake of the parties thereto.”
It is admitted that the deed as written covers the timber on' all the land described in the Packer deed, that being the controlling description.
The defendant claims to be a tona fide purchaser for value and without notice of the alleged claim of plaintiff, and tendered this issue:
“Did the defendant, Eowland Lumber Company, at the time it purchased the timber in question from the North State Lumber Company (Pope’s grantee), have notice of any mistake on the part of the plaintiff and Pope in the execution of the original timber deed? Answer:.”
His Honor erred in not submitting such issue in the present state of the pleadings.
It is not material that defendant had notice at the date of the extension deed. It had then bought and paid for the timber conveyed by the deed from plaintiffs to Pope. The defendant’s rights as to the quantity of timber acquired is to be determined by the date of the purchase from the North State Company, Pope’s grantee, except as hereinafter stated.
If at that time the defendant had no actual or constructive notice of the plaintiff’s equity, and was a tona fide purchaser *498for value, it acquired title to tbe timber in controversy, and tbe extension of tbe time of cutting by plaintiffs did not affect it.
Tbe action is not brought to reform and correct tbe extension deed, as we understand tbe complaint. Tbat deed refers to tbe deed to Pope, Book 80, page 447, for a description of tbe land, and tbe extension by its very terms applies to all tbe timber covered by tbe Pope deed.
By proper amendment to tbe complaint tbe plaintiffs will be permitted to set out another cause of action and to prove, if they can, tbat tbe descriptive words of tbe extension deed were inserted by mutual mistake of tbe plaintiffs and tbe defendant, tbe Rowland Lumber Company, and tbat tbe 'extension deed was intended to apply only to tbe cutting of timber on tbe 75 acres, alleged to have been marked out at tbe time.
If tbe plaintiff shall succeed in properly establishing tbat allegation, tbe issue - tendered by defendant, supra, would be immaterial. Tbe rights of tbe defendant would then be deter- * mined by tbe extension deed.
■ As this case is to be tried again, we will repeat, what has been often decided, that a deed cannot be corrected or reformed because of tbe mistake of one of tbe parties to it, but only when tbe mistake is mutual, tbat is, tbe mistake of both parties, or else upon tbe mistake of one party brought about by tbe fraud of tbe other.
We will notice one exception to evidence. Arthur Lee, surveyor, was permitted to testify as follows:
“Suppose you bad been given a deed tbat called for 75 acres in tbe lowgrounds of Motley Branch, Ward's Swamp, and Great Cobarie, where would you have located it?
“Answer: I would have gone to what we call water oak on Big Cobarie, at Carr’s corner, and run south until I came to tbe edge of tbe creek; from tbe edge of tbe creek down until I got to tbe plantation, then tbe plantation to tbe end of it; then I would have taken tbat Motley Branch land up here (indicating on map) as far as it would fake to get it.”
This evidence is incompetent and should have been excluded. Tbe question was purely hypothetical. It presupposed a deed not in existence and facts not in evidence.