¶1The opinion of the court was delivered by
¶2It appears that the defendant covenanted to convey to the plaintiff about three fifths of certain lands deeded him by Tinney, but has conveyed only three fifths of one half thereof, as he had before conveyed away all but *401that, being Seven tenths, to Pavkhurst. On the hearing before the referees, the defendant was permitted to show, by parol, that, before Tinney deeded to him, he was the equitable owner of one half of the land, and this was well known to the plaintiff, and that, in truth, the defendant only agreed to convey to the plaintiff three fifths of Tinney’s half, but by mistake, this writing was made to cover three fifths of the whole. This being proved, the referees awarded that the plaintiff should not recover on the covenant. It has been so frequently decided by this court that referees are not bound to proceed by legal principles, strictly, that this needs no further comment. These referees say they intended to proceed by equitable principles. Were they misled in the application thereof? The testimony showed that the covenant was drawn, by mistake, to cover more than was the real contract, and that the real contract- had been performed.— That such mistake could be shown, in equity, by parol, is past question, and, it proved, it must be obviously inequitable for the plaintiff to recover. We perceive no improper assumption of power by the referees, nor any mistake in the application of their principles.
¶3' The plaintiff introduced the paper marked F. and insisted that by the terms thereof he was entitled to all the demands therein, mentioned, subject to no division. The referees report that, from the paper and other testimony on the same point, they found the plaintiff was not entitled to the whole of said demands, and that he had received all which belonged to him. The referees do not report the testimony on which they found this, nor does it appear that they were ever requested so to do. We cannot presume what that testimony was, or whether it was in writing or by parol. It is useless for us to decide whether the writing showed a division of the demands, — -though we are inclined to that opinion, — as we cannot set aside the report when but a part of the testimony is before us. A report of referees would not generally be set aside, even if the whole testimony were reported, unless that testimony was all in writing and the decision was made on the legal construction of the writing.
¶4Judgment affirmed.