A bill in equity was filed in the circuit court to correct the mortgage in respect to the erroneous number of the section, and to have the mortgage foreclosed. The court, on the hearing, entered a decree in conformity to the prayer of the bill. The case was appealed to the supreme court by a subsequent mortgagee. The court says: "In the present case there was a simple mistake in the body of the deed in describing the land. The homestead was formally released and waived as required by statute, and the only effect of correcting the error in the description of the property was to make the deed express just what the parties to it originally intended it should;" and the decision of the lower court was affirmed. The case of Jackson v. Magbee, 21 Fla: 623: Here the bill prayed for a reformation of a deed as to the description of the land conveyed by the deed. The court, on the hearing, said; "That it was their intention only to sell and the intention of Leonardy to buy only a certain number of acres of land; that Leonardy had the tract which both parties understood to be the tract and quantity sold by Jackson, surveyed, and a map thereof made; that Maybee had actual notice of the amount of the land sold, and its boundaries by said map. If these statements are true, and there are no countervailing equities arising from the transaction, the appellants are entitled to the relief prayed for." In Roszell v. Roszell, 109 Ind. 355, 10 N. E. Rep. 114, it was alleged that the deed to the land was executed to the son of one of the parties by mistake. It was contended that the appellants were not entitled to relief, because, in order to justify the intervention of a court, there must have been a mutual mistake by both parties to the deed; and that, because the grantor was not mistaken, and the infant grantee was invested with the title without any mistake on his part, the court had no jurisdiction. The court says: "Of course, when the action is to reform an instrument on the ground that a mistake has occurred in the written memorial of the agreement between the parties, it must appear that the mistake was mutual, and that the reformation is necessary in order that the writing may correctly speak the agreement as it was actually made and understood by both parties. The * reformation is not to make a new agreement, but to establish and perpetuate the old one. It being admitted by the de murrer that James M. Roszell paid the entire purchase money, and that Armstrong agreed to cause his vendor to convey the lot to him, Armstrong will not be heard to say that the conveyance to the infant son was not a mistake on his part. The transaction was between Armstrong and James M. Roszell; and because Armstrong's vendor made the deed to the appellant in good faith, in ignorance of the mistake, is no reason why a court of equity should be prevented from looking at the real transaction and dealing with it accordingly. The demurrer to the complaint," say the court, "was properly overruled." Other authorities to the same import could be cited, but we think the above sufficient to show that courts of equity will, under circumstances like the present case, assume jurisdiction, and will, if the facts are true, reform a written instrument so as to conform to the intention of the parties to it at the time of its execution, and is within the rule above announced. The complaint alleges that the plaintiffs' grantors occupied a certain piece or parcel of land within the original townsite of Deadwood previous to its entry as such by the proper authority under the provisions of the congressional and territorial statutes; that they had erected on said land two dwelling houses and a barn of a certain value; and that within. the time prescribed by law they had made a statement containing all the requirements of the statute, and filed it with the probate judge, with an intent to claim the land thus occupied by them, and no other; but by inadvertence or otherwise a clerical mistake in the call to a monument in the description of the lots claimed was to corner No. 1 of mineral claim No. 38, instead of to corner No. 7, as intended. The facts also allege that this error in the description could not be prejudicial to the rights of any third persons, because no third persons had or claimed to have any rights to the land intended to be described. The probate judge, in making and executing the deed, very naturally put the same description in it as was found in the statement filed, without noticing the wrong description, but from inference presumed it to be correct, and related to the land occupied and improved by the claimants, and, of course, in the issuance of the deed necessarily passed upon the sufficiency of the statement as to form and contents. These were matters within his discretion, and his judgment that the statement was sufficient, in the absence of any fraud by either party, is conclusive. From a full consideration of this case, both on the law and the facts, we are of the opinion that there was no error in overruling the demurrer by the court below, and its order is therefore affirmed. All the judges concurring. WYCKOFF v. JOHNSON. 1. The plaintiff, who sued as receiver of a national bank, complained upon a promissory note, describing it, alleged to have been made and delivered to the bank by defendant. Defendant answered that he made a note of the tenor of the one described in the complaint, which, since its delivery to the payee, (said bank) had been, without his knowledge or consent, and at the instigation of said bank, materially altered; that the note so altered was the note sued on, but by reason of said alteration it was not his note; and that he never made or delivered it. Held, that this did not constitute a denial of the making of the note which plaintiff alleged as his cause of action. un 2. Upon the trial it was conceded the alteration was made by the cashier of the bank, but plaintiff insisted that such act of the cashier was authorized by and did not bind the bank. Held, that defendant was entitled to show by the books of the bank that the note had been carried on the books of the bank as a discount for the amount to which it had been so altered, as evidence tending to show an adoption or ratification by the bank of such alteration; and that the knowledge of the cashier as to the condition of the discounts of the bank was the knowledge of the bank. Held, further, that, although in the absence of fraud plaintiff might, notwithstanding the alteration, recover on the original consideration, still when he undertook to do so defendant was entitled to show any defense he might have made to an action on the original contract; and the refusal of the court to allow defendant to prove the entire contract upon which the indebtedness rested, and any contemporaneous agreement between the parties, which be came apart thereof, was error. 3. A principal cannot avail himself of the unauthorized act of his agent, so far as it is advantageous to him, and repudiate its obligation. (Syllabus by the Court. Opinion filed May 28, 1891.) Appeal from circuit court, Lake county. Hon. FRANK R. AIKENS, Judge. Action by plaintiff as receiver of a national bank to recover upon a promissory note given by defendant to the bank. The defendant answered, pleading an alteration of the note as a defense. There was a verdict for plaintiff and judgment was thereupon entered. Defendant appeals. Reversed. The facts are fully stated in the opinion. In the collection of the note in suit the receiver stood in the same relation, was subject to the same legal conditions that the bank would have occupied in an attempt to enforce payment before its insolvency. Casey v. Society, 2 Wood, 84; Gibson v. Worden, 14 Wall. 248. The fraudulent alteration of the note in suit is such an alteration as relieves the defendant from all liability on the written instrument. Wade v. Withington, 1 Allen, 561; Kilkelley v. Martin, 34 Wis. 525; Townsend v. Star Wagon Co. 7 N. W. 274; Stoddard v. Penniman, 108 Mass. 366; Daniels on Neg. Inst. § 1384; §§ 3594, 4762 Comp. Laws. The fact that the defendant was the holder of stock in the bank for which the altered instrument was given does not change the legal effect of the alteration. Salem Bank v. Gloucester Bank, 17 Mass. 1; § 5136 Rev. Stat. U. S.; Crawford v. Bank, 100 N Y. 50. The plaintiff cannot recover upon the original consideration for the altered note so long as his action stands to recover upon the instrument itself. McMartin & Carland, for respondent. The receiver produced the certificate of his appointment and was sworn and testified that he was receiver of the bank. This was sufficient authority for him to maintain the action, it being admitted that defendant gave the note to the bank. Platt v. Beebe, 57 N. Y. 339; Cadle v. Baker, 20 Wall. 65; 2 Morse on Bank, § 150; Bank v. Kennedy, 17 Wall. 19. The cashier had no actual or implied authority from the bank to make the alteration complained of and there is no evi dence to show the bank ever authorized or ratified the act of · the cashier in making the alteration. The alteration, therefore, stood in the same legal position as if made by a stranger. Hunt v. Gray, 35 N. J. 227; Rees v. Overbaugh, 6 Cow. 747; 2 Daniels Neg. Inst. § 1373; U. S. v. Spaulding, 2 Mason, 478; Bank v. Roberts, 45 Wis. 373; Brooks v. Allen, 62 Ind. 401; Laengenberger v. Kroeger, 48 Cal. 147; 1 Green. Ev. § 566; Tubbeing v. Kalbrecher, 22 Mo. 595; Medlin v. Platt County, 8 Mo 235; Thompson v. McKee, 5 Dak. 172; Davis v. Randall, 115 Mass. 547; Bank v. Dunn, 6 Pet. 57; Bank v. Jones, 8 Id. 14; Bank v. Tisdale, 84 N. Y. 655; Wyman v. Bank, 14 Mass. 58. 111; Morrison v. Huggins, 545; Sullivan v. Rudstl, 18 Rep. 233; Owen v. Hall, 16 Even if the alteration in the note destroyed it, still as there was no evidence of fraud on the part of any party to the note the plaintiff was at liberty to ask a recovery on the original contract as alleged in defendant's answer. Krause v. Meyers, 32 Ia. 566; Clough v. Levy, 49 Ia. 53 Ia. 76; Eckert v. Pickel, 55 Ia. N W. 856; Hunt v. Gray, 10 Am. At. 366; Booth v. Powers, 56 N. Y. 31; Meyer v. Hnneke, 53 N. Y. 412. The allegations in the answer supplied the omission of an allegation as to the original contract in the com- . plaint. 1 Chitty Plead. Chap. 10; Stephen Plead. 146; Bliss on Code Plead. 437; Pindal v. Trevor, 30 Ark. 249; § 5097 Comp. Laws. The judgment on the conceded facts is right in law. When this is so the appellate court will not reverse even if it disagrees with the reasons given for the judgment below. Mann v. Welton, 32 N. W. 599; Hinds v. Cottle, 9 N. E. 654; Menk v. Mortgage Co. 79 Ga. 213; Atwood v. Partree, 56 Conn, 80; Stone v. Cronis, 87 Ky. 173; Smith v. Aubrey, 19 Ala. 63; Scroeder v. Johns, 27 Cal. 274; Maher v. Stoner, 14 Ia. 379; Stackpole v. Wickham, 7 La Ann. 678. KELLAM, P. J. In this action the complaint alleges organization of the Madison National Bank, under the "national bank act," the appointment of respondent as its receiver, and the assumption of his duties as such; that defendant (appellant) made and delivered his promissory note to said bank for $1,000 |