Plaintiff having failed to sustain tbe allegations upon which be sought relief on tbe second cause of action set out in bis complaint, defendants present to this Court, on their appeal, only their assignments of error, based upon exceptions pertinent to tbe first cause of action. They rely chiefly upon their exception to tbe refusal of tbe court to allow their motion for judgment as of nonsuit, made at tbe close of all tbe evidence, under C. S., 567.
Tbe principle tbat a Court of Equity, or a court exercising equitable jurisdiction, will decree tbe reformation of a deed or written instrument, from which a stipulation of tbe parties, with respect to some material matter, has been omitted by tbe mistake or inadvertence of tbe draughts-man, is well settled, and frequently applied. Strickland v. Shearon, 191 N. C., 560. Tbe equity for tbe reformation of a deed or written instrument extends to tbe inadvertence or mistake of tbe draughtsman who writes tbe deed or instrument. If be fails to express tbe terms as agreed upon by tbe parties, tbe deed or instrument will be so corrected as to be brought into harmony with tbe true intention of tbe parties. Sills v. Ford, 171 N. C., 733. All tbe authorities are agreed, says Hoke, J., in King v. Hobbs, 139 N. C., 170, tbat a deed or written instrument will be reformed so as to express tbe true intent of tbe parties when by a mistake or inadvertence of tbe draughtsman a material stipulation has been omitted from tbe deed or instrument as written. If tbe deed or written instrument fails to express tbe true intention of tbe parties, it may be reformed by a judgment or decree of tbe Court, to tbe end tbat it shall express such intent whether tbe failure is due to mutual mistake of tbe parties, Maxwell v. Bank, 175 N. C., 183, to tbe mistake of one, and tbe fraud of tbe o'ther party, Potato Co. v. Jeanette, 174 N. C., 236, or to tbe mistake of tbe draughtsman, Pelletier v. Cooperage Co., 158 N. C., 405.
Tbe party asking for relief by reformation of a deed or written instrument, must allege and prove, first, tbat a material stipulation, as alleged, was agreed upon by tbe parties, to be incorporated in tbe deed or *272instrument as written, and second, that such stipulation was omitted from the deed or instrument as written, by mistake, either of both parties, or of one party, induced by the fraud of the other, or by the mistake of the draughtsman. Equity will give relief by reformation only when a mistake has been made, and the deed or written instrument because of the mistake does not express the true intent of both parties. The mistake of one party to the deed, or instrument, alone, not induced by the fraud of the other, affords no ground for relief by reformation.
Walker, J., in Long v. Guaranty Co., 178 N. C., 503, speaking of the distinction between cancellation or rescission and reformation of a written instrument, says: “A noted text writer says that courts of equity do not grant the high remedy of reformation upon a probability, or even upon a mere preponderance of evidence, but only upon a certainty of error. Pomeroy on Eq. Jur., sec. 859. . . . A person who seeks to rectify a deed on the ground of mistake must establish, in the clearest and most satisfactory manner, that the alleged intention to which he desires it to be made comformable continued concurrently in the minds of all parties down to the time of its execution; and also must be able to show exactly and precisely the form to which the deed ought to have been brought, and that the omission of some material thing was caused by their mistake. To reform a contract, and then enforce it in its new shape, calls for a much greater exercise of the power of a chancellor than simply to set the transaction aside. Reformation is a much more delicate remedy than rescission. Hence, in order to justify a decree of reformation in cases of pure mistake, it is necessary that the mistake should have been mutual.” A court of equity cannot, and should not undertake to make a new contract between the parties by reformation; it may by cancellation or rescission relieve a party from an alleged contractual obligation or liability, which he has in fact not undertaken or incurred; it cannot, however, impose upon him a liability which he has not assumed, or an obligation which he has not undertaken. Allen v. R. R., 171 N. C., 339; Shook v. Love, 170 N. C., 99; Dickey v. Cooper, 170 N. C., 489.
The stipulation or condition, alleged in. the complaint to have been agreed upon by the parties, and omitted from the deed by the draughtsman, was material to the relief sought by plaintiff upon his first cause of action; the recitals in the deed are clearly not sufficient, under the decisions of this Court, to impose upon defendant’s estate in the land, conveyed to her by plaintiff, a condition subsequent, to be enforced by the forfeiture of her estate. Whether such recitals can be construed as constituting a covenant, for the breach of which plaintiff can recover damages, is not presented on this record. The learned counsel who drew the complaint in this action was evidently of the opinion, that under *273our decisions, a forfeiture could not be decreed, unless the deed was reformed by incorporating therein the condition alleged to have been agreed upon by the parties and omitted by the mistake of the draughts-man. The distinction between covenants, to be enforced by damages, and conditions subsequent, to be enforced by forfeiture, has been frequently discussed and applied by this Court. See Cook v. Sink, 190 N. C., 620; Askew v. Dildy, 188 N. C., 147; Fleming v. Mots, 187 N. C., 593; Hinton v. Vinson, 180 N. C., 393; Bailey v. Bailey, 172 N. C., 671; Shook v. Love, 170 N. C., 101; Brittain v. Taylor, 168 N. C., 271; Helms v. Helms, 135 N. C., 164; S. c., 137 N. C., 207.
The evidence submitted to the jury, pertinent to the first issue, involving the allegations with respect to the agreement alleged to have been entered into by plaintiff and defendant, and the omission of such agreement from the deed by the draughtsman, tends to show that plaintiff, a childless widower, of about 63 years of age, had frequently expressed a purpose to “give” his land to defendant, a cousin, at whose home he was a frequent visitor; that defendant had promised to take care of him and to provide a home for him; that on 28 June, 1921, plaintiff requested defendant to go with him to Farmville, N. C.; that she complied with this request, and that when they arrived at Farmville, plaintiff left defendant and went to the office of an attorney; that he requested the attorney to write a deed, advising him of his wishes and purposes; that the attorney, after discussing the matter at length with plaintiff, advising him of the difference in effect between a will and a deed with reservation of a life estate in the grantor, dictated the deed to his stenographer, who was the only other person present in the office at the time; that after she had written the deed, it was read by the attorney to plaintiff, who thereupon signed it and acknowledged its execution before a notary public; that plaintiff then went to defendant and delivered the deed to her. Plaintiff and defendant then went to the county seat; the deed was probated and recorded on the same day that it was executed.
Plaintiff testified that he was so drunk when he went into the office of the attorney at Fartoville that he was unable to remember his conversation with the attorney; he thus accounts for his failure to testify as to his conversation with the attorney or as to his instructions to him relative to the drawing of the deed- Both the attorney and his stenographer testified that plaintiff was not drunk while he was in the office, and the jury has so found. The testimony of both the attorney and the stenographer was to the effect that the deed was written in accordance with the instructions of plaintiff, after he had been fully advised by the attorney of its legal effect as a conveyance of his land to defendant.
There is no evidence set out in the case on appeal upon which the first issue can be answered in the affirmative; the evidence does not sustain *274tbe allegations of tbe complaint, constituting tbe first cause of action, either as to an agreement between plaintiff and defendant with respect to tbe condition, or as to tbe omission of such agreement from tbe deed as written by tbe draughtsman. Defendant’s motion for judgment as of nonsuit should have been allowed. There was error in refusing to allow tbe motion.
It is needless to consider other assignments of error, based upon numerous exceptions appearing in tbe case on appeal. Since tbe trial of this action plaintiff has died; bis only heir at law has been substituted as plaintiff in tbe action and has prosecuted this appeal. For tbe error in refusing to allow tbe motion for judgment of nonsuit, there must be a
New trial.