1877. March Term. Carter, Trustee, V. McArtor McArtor demurred to the bill for want of equity, and he also answered. He admits he passed to De Butts the Kerchival bonds, in part payment of the purchase money of the land purchased by him; but he denies that "from mistake, omission, accident, or some other cause," there was a failure to secure by & als. the deed of trust which he executed to Latham upon the land purchased by him, as is alleged in the bill, the ultimate or any payment of the Kerchival bonds. On the contrary, respondents distinct recollection is, that Latham, the trustee, who wrote the deed, prepared it in the presence and under the direction of the parties, with the contract between the parties before him; and he insists that if there had been an agreement to embrace the Kerchival bonds, which he does not admit, it was at the time of executing the deed of trust abandoned. He further says, that a short time before he transferred the Kerchival bonds to De Butts, he had sold the property, on which they were secured by deed of trust, to Kerchival for $1,200, and Kerchival had put upon it, prior to the transfer, valuable repairs, greatly enhancing its value. That De Butts, about the year 1845, caused a sale of the property to be made, at which sale respondent being liable, as assignor of said bonds, attended and bid in the property at $650, instead of $450, as stated in the bill; at which sum respondent was well content to keep the property, and pay De Butts the balance due upon the bonds; but the sale having been made without the presence of the trustee, it was deemed to be void, and was not consummated for six years afterwards. The said De Butts took no steps to collect the said bonds, either by a sale of the real estate or proceedings against Kerchival; during all which time the real estate was March 1877 constantly diminishing in value. It was subsequently Term. sold, as stated in the bill. And he relies upon the statute of limitations as a bar to the claim. Carter, Trustee, V. McArtor & als. A number of witnesses were examined in the case; but the only evidence in relation to the difference between the agreement and the deed of trust, is that of Edward Hall, who wrote the agreement. His testimony is sufficiently stated by Judge Staples in his opinion. The cause came on to be heard on the 2d of February 1872, when the court held that there was not sufficient evidence to reform the deed of trust to Latham, so as to charge the same with the Kerchival bonds; and therefore dismissed the bill with costs. And Carter thereupon applied to this court for an appeal; which was allowed. Brooke & Scott and Mosby, for the appellant. Wm. H. Payne, for the appellees. STAPLES, J., delivered the opinion of the court. The court is of opinion, that although a deed or other instrument may be reformed, when through mistake or accident it does not accurately represent the agreement of the parties, it is necessary that both the agreement and the mistake shall be made out by the clearest and most satisfactory testimony. Where the mistake is established by other preliminary written agreements, equity more readily interferes than in cases where the mistake is to be established by parol evidence. But even where there is a preliminary article of agreement or settlement, it must be made plainly to appear that the parties intended in their final instrument merely to carry into effect the con 1877. March Carter, V. McArtor trol or arrangement set forth in the prior agreement. The very circumstance that the final instrument of Term. conveyance differs from the preliminary contract, affords of itself some presumption of an intentional Trustee, change of purpose or agreement, unless there is some recital in it, or some other attendant circumstance, which demonstrates that it was merely in pursuance of the original contract. Story's Eq. Ju., § 160; Leas' ex'or v. Eidson, 9 Gratt. 277; Mauzy v. Sellars, 26 Gratt. 641. In leading cases in equity, vol. II, part I, page 980 (E. 1877), the rule is thus expressed. The burden of proof is throughout on the complainant, who must rebut the presumption that the writing speaks the final agreement by the clearest and most satisfactory evidence. It must not only appear that the parties entertained a different intention in the first instance, but that it was not changed at or before the execution of the instrument; for otherwise, the legal and natural inference is, it was laid aside for that expressed in the writing. The court is further of opinion, that applying these principles to the case before us, there is no error in the decree of the circuit court. According to the memorandum or articles of agreement, entered into on the 12th March 1844, it was provided that the deed of trust to be executed by the appellee, McArtor, to secure the payment of the purchase money due his vendor, Richard De Butts, was also to include the amount of the Kerchival bonds. That deed was not executed until the 18th of December 1844. It does provide for the payment of $6,000, part of the purchase money, but it makes no provision for the Kerchival bonds. It makes no reference whatever to Whether this omission was accidental, or wheVOL. XXVIII-46 them. & als. 1877. March Term. Carter, V. McArtor ther the parties were satisfied the Kerchival bonds were already amply secured by deed of trust, it is impossible to say. As has been already said, the preTrustee, sumption is, that the deed speaks the final agreement of the parties. It devolves upon the appellant to re& als. but that presumption by satisfactory evidence. It is incumbent upon him to show that the intention expressed in the memorandum was not changed before the execution of the deed. As one or the other must be held to express the true agreement, the legal and natural inference is, that the one last executed is the proper one. There is nothing in the deed to rebut this inference. Had the recitals therein made disclosed a purpose to provide for the payment of the purchase money, there would be greater reason to conclude the omission was accidental. But nothing is said about purchase money. All the provisions relate to a bond of $6,000; the date, time and mode of payment of which are minutely stated. From all which it may be fairly concluded that the parties in preparing and executing the deed had reference to the original agreement, were then fully apprized of all its terms, and waived the provision touching the Kerchival bonds. The only testimony adduced by the appellant, to controvert the correctness of this view, is found in the deposition of Edward Hall, the father-in-law of De Butts. This deposition was taken in the absence of the opposing party and his counsel, upon three days' notice given to a daughter of McArtor in his absence, without explanation, and all the interrogatories and answers alleged to be wholly in the handwriting of counsel. The deposition was excepted to upon these grounds. Whether the exceptions were ever called to the attention of the court below, or were passed upon, 1877. March Term. Carter, V. McArtor & als. does not appear. Waiving any inquiry upon those points, and giving to the appellants the benefit of the evidence, it is altogether insufficient to establish the alleged mistake, especially against the positive denials. Trustee, of the answer. The deposition was taken twenty-two years after the date of the contract, and relates to transactions, the most material of which occurred in the absence of the witness, and of which he had no personal knowledge. He does not pretend that McArtor's attention was called to the mistake, or that the latter had ever admitted a mistake was committed in the preparation and execution of the deed of trust. He does say that when he, the witness, saw the deed of trust, shortly after its execution, he called attention to the omission, and was told it made no difference, as the contract was a sufficient guarantee for the payment of the Kerchival bonds. If this be so, it may serve in some measure to explain the reasons influencing the parties in confining the deed as a security for the $6,000 bond. Notwithstanding the appellants, or those under whom they claim, had actual notice of the alleged mistake as far back as January 1845, no suit was brought, and no claim was ever asserted to have it. corrected until the year 1858, a period of fourteen years, when this bill was filed. No excuse is given or attempted for this long delay. This is the more surprising, because, as early as 1852, the property conveyed to secure the payment of the Kerchival bonds was sold, and an amount realized from the sale sufficient to pay only about one-third of the debt. And yet with full knowledge of this deficiency the parties delayed the assertion of this claim for nearly six years. There is but one satisfactory theory upon which such conduct can be explained. At the time the deed of |