¶1delivered the opinion of the Court:
¶2We are of opinion the decree in this case is correct. The deposition of Charles E. Parker, a disinterested witness, and cognizant of the transaction from its beginning, clearly shows that it was the forty acres with the pond upon it, about which the parties were contracting. At the time of the negotiation, the agent of appellant, with whom the business was transacted, said it made no difference which of the forties the purchaser took, and that he must decide upon the numbers, as the agent did not know which forty had the fishing privilege. It was perfectly well understood that this privilege was the object of the purchase, and hence the first deed which was sent out from Massachusetts, and which did, in fact, include the pond, was sent back before it was recorded, from a mistaken idea that the pond was on the other forty, and the defendant then executed a new deed. It then being discovered that the first deed was in fact correct, and the second did not include the pond, but the purchase money having meanwhile been paid, the defendant refuses to correct the error, and convey the land described in the first deed. He may suppose that having already made two deeds, he should not be called upon to make a third, but the error in the description having been the result of misapprehension on both sides, equity requires that the mistake should be corrected, and the vendor should convey to the purchaser the land concerning which the contract was really made, on receiving back the title to the forty acres conveyed by mistake. No equities of third persons have intervened, nor does it appear that there has been any change in the condition of either tract.
¶3Decree affirmed.