Sheets v. . Stradford.

Brooden, J. The case is this: The owner of lot No. 4, block 13, Kimberly Place, executes a deed of trust to secure a note for $1,000, but the description of the property in the deed of trust identifies the lot as being lot No. 44. Thereafter the same owner executed a second deed of trust upon the same property to secure a note for $200 held by one of the plaintiff's. The second deed of trust contained the same error of description appearing in the first deed of trust. The owner of the lot conveyed the property by deed containing the same description to a man named Pleasants and Pleasants conveyed to a man named Scales, who gave a third deed of trust upon the property to secure a note of $125, which note is now held by the other plaintiff in this action. In February, 1929, the land was sold under power contained in the first deed of trust, and after paying the note therein secured and all charges and taxes, there was a balance of $327.06 in the hands of the trustee in the first deed of trust, and he paid this sum to the clerk of the Superior Court for the purpose of having the owner of the fund determined. The plaintiffs as holders of the notes secured by the junior deeds of trust assert title to the fund, and the defendant, the original owner of the property, likewise claims the fund. The plaintiffs allege that it was the intention of the parties to describe in said deeds of trust lot No. 4 instead of lot No. 44, and that the error in the description in the deeds of trust was due to mutual mistake or mistake of one party induced by the fraud of the other. The power of equity created the remedy of reformation for the purpose of correcting errors produced by mutual mistake or mistake of one party induced by the fraud of the other in order that the true intention of the parties might be effectuated, and when equity thus acts upon a transaction, its ¡oower thus invoked relates to the beginning of the transaction. Maxwell v. Bank, 175 N. C., 180, 95 S. E., 147; Long v. Guaranty Co., 178 N. C., 503, 101 S. E., 11; Strickland v. Shearon, 191 N. C., 560, 132 S. E., 462; Crawford v. Willoughby, 192 N. C., 269, 134 S. E., 494; Skinner v. Coward, 197 N. C., 466, 149 S. E., 682. The application of the principle of reformation upon the facts disclosed in the record does not affect the rights of the purchaser of the *39 property under power contained in tbe first deed of trust, for tbe reason that tbe parties are not attempting to set tbe sale aside or to assert title to tbe land, but are contending solely and exclusively for tbe balance of tbe money wbicb bas been paid into tbe bands of tbe clerk by tbe trustee. Tbe plaintiffs are therefore entitled to submit tbe issues raised to a jury. Therefore, tbe cause is remanded for trial upon tbe merits. Eeversed.