¶1The extent and sufficiency of the testimony in the case may be understood from the opinion of the court, delivered by
¶2In this case, the defendant, John Smith, having conveyed the first piece in dispute to Sarah Glysson, and the second piece being conveyed by Pride and Hutchins *455to Rufus C. Smith, and by the latter to Sarah Glysson, the orator seeks a release of her title.
¶3In relation to the first piece, which the orator claims John Smith intended to have included in the mortgage, and which the orator supposed was included, it is to be observed ,—
¶4That the defendant, John Smith, wholly denies any such intention. It, therefore, devolves upon the orator to prove that such was the contract. This must be done by the most conclusive evidence. This court, when called upon to correct mistakes of this character, always require the most irrefragable evidence. The mistake must either be admitted and confessed by the defendant, or proved by such evidence as admits of no doubt, or this court will not interfere to change the tenor of the written contract of the .parties. When called upon to correct mistakes of the parties, if we find ourselves in doubt, whether, by interfering, we may not produce wrong, rather than correct it, we should commend the parties to their contract, as it exists in the written evidence.
¶5In this case, although there be some proof tending pretty strongly to show, that the contract of the parties did include, or was intended to include, the small Carley piece, yet, it falls very far short of that conclusive proof, which will warrant the court in setting aside the contract of the parties, as reduced to writing and.signed, and this against the explicit answer of the defendant upon oath.
¶6In regard to the “ home lot,” included in the deed from the guardians of Wm. and Patty Pride to John Smith, and also in the mortgage, it is clear the defendant, Sarah Glysson, cannot hold it. For, although the evidence is not altogether sufficient to show, that she had knowledge of this mortgage, at the time she received her title, it does seem probable, from all the circumstances in the case, that such must have been the fact.
¶7At any rate, the orator’s title must be preferred to the defendant’s, on another ground. John Smith obtained the first conveyance from Pride, and continued in possession of the land, under that title, for many years before the conveyance to the orator, and up to the time of the foreclosure of his title. The orator’s title and that of John Smith are identical and constitute, but one title, and that of Sarah Glysson is to be considered as a distinct and adverse claim of title.
¶8Under these circumstances, Sarah Glysson would be affected with constructive notice of John Smith’s unrecorded deed from Pride. Pride having for many years ceased to exercise any claim of title to the land, and John Smith and the orator having all along had the visible and apparent ownership, was notice to all the world of Pride having conveyed to Smith. Rublee v. Mead, 2 Vt. R. 544.
¶9This court decree ;—
¶10That the said Sarah Glysson be perpetually enjoined from bringing or prosecuting any suit, for the recovery of the land described in Pride’s deed to John Smith, and that she release all her interest in the same to the orator within sixty days hereafter, and that she pay no costs, and recover none ; and that the orator recover his costs against the other two defendants.
¶11In the case of Sarah Glysson, costs are denied on the ground that she has prevailed on one point, and, especially, on the ground that she is not affected with any evidence of fraud in fact.