Page:Federal Reporter, 1st Series, Volume 1.djvu/306

 298 FEDERAL REPORTER. �r �as the "Carson Land," of 50 acres; that these, before the execution of the mortgage, ail came into the possession of the bankrupt Hart, but by two different deeds. The description of the mortgage to Hall and Allen is exceedingly indefinite upon its face: "100 acres of land upon the Ohio river, oppo- site the Diamond Island, and being part of the same land conveyed to me by Brooks' heirs, as shown by deed recorded in Henderson county clerk's o£&ce, Book P, p. 532." The only thing rendered certain by this description is, that it was intended to be 100 acres out of 263 acres conveyed by the Brooks heirs, by the deed specified in the description, but which 100 acres of the 263 the deed fails to specify. If the bill sought merely to identify 100 acres out of the 263 in the Brooks' tract, I think it might be sustained by paroi evi- dence of the precise portion of this tract intended to be con- veyed. But, as I understand, the bill seeks to include another tract of land obviously excluded by the description in the mortgage, and not even then to identify in any other way the particular 100 acres intended to be conveyed, but generally to sweep up in favor of the complainants everything that they have not already acquired by their purchase from the bidder under the execution. �I see no reason to doubt that this case stands substantially as it -would have stood if the bill had been filed by Hall' and Allen, the mortgagees, against Hart, the mortgagor. Com- plainants are the assignees of Hall and Allen, and are vested with their rights under the mortgage, which was duly ac- knowledge and recorded. Defendant Ward is the assignee in bankruptcy of Hart, and takes his interest in the land subject to ail equities. Indeed, except in cases of fraud, where he represents the creditors as well as the bankrupt, his title is that of the bankrupt himself, nor have I any doubt that where a mistake bas bëen made in the description of the land in a deed, that such deed may be reformed, as between the orig- inal parties, if the mistake can be shown by clear and convinc- ing testimony. Thus, if A. conveys to B,, a lot of land to which he had no title, B. may show that it was understood that another lot was intended to be conveyed, to which he had ��� �