be impeached for mistake, the fact of mistake must be established by clear, convincing evidence beyond a reasonable doubt. (Moran v. McLarty, 11 Hun, 66; 75 N. Y. 26; Mead v. Westchester Fire Ins. Co., 64 N. Y. 453; Miaghan v. Hartford Fire Ins. Co., 12 Hun, 321; German American Ins. Co. v. Davis, 131 Mass. 316; Bryce v. Lorillard Fire Ins. Co., 55 N. Y. 240; Nevius v. Dunlap, 33 N. Y. 676; Cox v. Woods, 67 Cal. 317; Leonis v. Lazzarovich, 55 Cal. 54; Lestrade v. Barth, 19 Cal. 675; 1 Story's Eq. Jur., secs. 152-159; Stone v. Shirk, 1 Watts & S. 195.) This rule of equity exempts our case from the operation of a practice of this court to sustain the decision of the court below upon an issue of fact when it has any evidence whatever to support it. (Potter v. Potter, 27 Ohio St. 84; Ford v. Osborne, 45 Ohio St. 1.) If the declaration of trust could not be reformed in the absence of Haggin, Mills, and the Dyers, or if the case made by the intervenor did not entitle him to a refor mation of it in this action, the plaintiff should have had judgment; for "until the deed is reformed the court is bound to act upon it as it exists, although fully satisfied that it is at variance with the intention of the parties." (1 Story's Eq. Jur. 164 d; Kerr on Fraud and Mistake, 429; De Witt v. Duncan, 46 Cal. 343; Civ. Code, secs. 852, 1625, 2253, 2254; Code Civ. Proc., secs. 1856, 1971.) If the alleged agreement between Waterman and Stanford had been valid and enforceable, Stanford's remedy would have been a specific performance of the agreement, and not a revision of the declaration of trust. But the agreement between Stanford and Waterman, not be ing in writing, was not valid or enforceable.

J. E. Foulds, for Defendants and Respondents.

All the interests of the various parties were several in their character. The other beneficiaries, D. O. Mills, E. H. Dyer, E. Dyer, and J. B. Haggin, had no concern whatever with the interests designated to be in Stanford

and Waterman, and it would have been an idle ceremony to have made them parties to this intervention, for the reason that their rights are in no way affected by it. As to them, the instrument remains the same after as before revision,-"the law neither does nor requires idle acts." (Civ. Code, sec. 3532.) When lands are held under an express trust, the whole title is in the trustee. The beneficiary has no title, either legal or equitable. He has simply a right to enforce the execution of the trust. (Civ. Code, sec. 863.) Where the evidence which tends to prove fraud or mistake, if standing alone, uncontradicted, is sufficiently clear and convincing, the judgment cannot be reversed on the ground that such evidence is contradicted by other evidence, because the right to pass upon the credibility of witnesses is not vested in the appellate court. The only question to be decided in respect to the sufficiency of the evidence is, whether that which tends to prove the alleged fraud or mistake, if standing alone, without contradiction, would make out a prima facie case. (Henkle v. Royal Exch. Asso. Co., 1 Ves. Sr. 318; Lyman v. U. Ins. Co., 17 Johns 373; Montville v. Haughton, 7 Conn. 543; Stephens v. Murton, 6 Or. 193; Briegel v. Moeller, 82 Ill. 257; Everts v. Strode, 11 Ohio, 480; 38 Am. Dec. 744; Harrison v. Jameson, 3 J. J. Marsh. 232; Huss v. Mor ris, 63 Pa. St. 367; Rigsbee v. Ives, 21 Ind. 227.)

Rhodes Borden, for Intervenor and Respondent.

It was competent for the parties to agree that Waterman's interest should be held by the trustee as security for his debt to Stanford. (Millard v. Hathaway, 27 Cal. 120; Broder v. Conklin, 77 Cal. 330; Thomas v. Jameson, 77 Cal. 91; Hellman v. Messmer, 75 Cal. 166.) Since Waterman's debt to Stanford was not paid, neither he nor his creditor can ask the aid of a court of equity without first doing equity by tendering to Stanford the amount due him. (Booth v. Hoskins, 75 Cal. 271.) The

declaration of trust could be reformed in the absence of D. O. Mills, E. II. Dyer, E. Dyer, and J. B. Haggin, because they have no interest in the reformation asked. (Settembre v. Putnam, 30 Cal. 490-498; Pomeroy's Remedies, secs. 378, 379; Story's Eq. Pl., secs. 72, 76 a, 76 b, 29, 231, 519; Daniell's Chancery Practice, 219; Cata wissa R. R. Co. v. Titus, 49 Pa. St. 277; Newman v. Home Ins. Co., 20 Minn., 422; Thomas v. Kennedy, 24 Iowa, 404.) The instrument in question is not a joint contract; it is rather a collection of several contracts, in so far as it is a contract at all. On its face it shows that each signer had a distinct and separate interest. (Moss v. Wilson, 40 Cal. 159; Wharton on Contracts, secs. 815-818, and cases cited; Story's Eq. Pl., secs. 127-129, 129 a, 212; Catawissa R. R. Co. v. Titus, 49 Pa. 280; Campbell v. Watson, 8 Ohio, 498; Hall v. Leigh, 8 Cranch, 50; Oweston v. Oyle, 13 East, 538; Daniell's Chancery Practice, 219.) Messrs. Mills, Haggin, and Dyer were not necessary partties, for the further reason that their trustee, Smith, was party to the suit, and he could defend for all or any of the beneficiaries, if their interests were to be affected injuriously. (Pomeroy on Remedies, sec. 357; Daniell's Chancery Practice, 5th Am. ed., 222-227; Campbell v. Watson, 8 Ohio, 498.) Reformation gives no new right. It merely sets forth what in equity has always been the right of the party asking it. (Hayford v. Kocher, 65 Cal. 389.) Attaching creditors cannot resist reformation when the remedy would have been proper against their debtor. They are not subsequent purchasers or encumbrancers for value. If we had a right to a reformation before the levy of plaintiff's attachment, we have the same right now. (Kerr on Fraud and Mistake, 419, note; Lowe v. Allen, 68 Ga. 225; Wall v. Arrington, 13 Ga. 88; Thomas v. Kennedy, 24 Iowa, 496; 95 Am. Dec. 740; White v. Wilson, 6 Blackf. 488; 39 Am. Dec. 437; Bush v. Bush, 33 Kan. 556; Barr v. Hatch, 3 Ohio, 527; Simmons v. North, 3 Smedes & M. 67; Goveneur v. Titus, 1 Edw. Ch. 477; Allen

v. McGaughey, 31 Ark. 252; Blackburn v. Randolph, 3: Ark. 119; Strang v. Beach, 11 Ohio St. 283; 78 Am. Dec. 300.) Some of the cases, notably Rider v. Powell, 28 N. Y. 310, have gone so far as to hold that equity would grant reformation even where the mistake was a unilateral one; and there is a long line of cases in English chancery where it was held the mistake was unilateral, and yet the court granted a provisional sort of reformation, --that is, decreed that the instrument be reformed, but giving the defendant the option of rescinding. (Harris v. Pepperell, Eng. L. R. 5 Eq. Cas. 1; Mortimer v. Shortall, 2 Dru. & War. 363; Garrard v. Frankel, 30 Beav. 445; Harryman v. Collins, 18 Beav. 11; Murray v. Par ker, 19 Beav. 305; Story's Eq. Jur., sec. 164 c.)

Fox, J.-On the eleventh day of February, 1885, the plaintiff commenced a suit against the defendant Waterman for the recovery of the sum of $21,404.16, with interest, due from said defendant upon a promissory note, which suit was brought in the superior court in and for the city and county of San Francisco. At the time of commencing the action he caused a writ of attachment to be issued, directed to the sheriff of the county of Alameda, and under it, caused the sheriff to attach all the right, title, and interest of the said Waterman in and to certain lands situate in said county of Alameda, standing of record in the name of the defendant S. P. Smith. In that suit such proceedings were had as that in due course the plaintiff recovered judgment, and caused execution to be issued directed to the sheriff of the city and county of San Francisco, who in due time returned the same nulla bona. Thereupon the plaintiff instituted this action, in the nature of a creditors' bill, in the superior court in and for the county of Alameda, against the defendants Waterman and Smith, alleging, among other necessary and proper things, that the defendant Smith held the legal title in and to the lands so

attached as aforesaid, to the extent of one undivided eighth thereof, in secret trust for the said Waterman; that Smith paid no consideration therefor, or for any interest in the said land; that the purchase price of said land had been wholly paid by other parties, one eighth thereof having been paid by the said Waterman, and that as to said eighth interest, Waterman was the equitable owner thereof, but he had caused the legal title thereof to be vested in said Smith, to prevent the same from being subjected to the payment of the indebtedness of said Waterman, and thereby to defraud the plaintiff and the estate represented by him; that Waterman had no personal property out of which to make the judgment in favor of plaintiff; and that there was no real estate standing in the name of said Waterman in this state; and praying a decree adjudging the said Waterman to be the owner of said one eighth interest in said land, and subjecting the same to the lien of plaintiff's judg

ment.

The defendants answered jointly, setting up that, long prior to the conveyances by which Smith became vested with the title to said lands, the defendant Waterman was the owner of a contract for the purchase of an interest in said lands, amounting to an undivided eighth thereof, and had become entitled to a conveyance of said undivided interest; that while so entitled, and on the fourteenth day of March, 1877, at his request, Stanford had become accommodation indorser on promissory notes of Waterman to the amount of $16,500, and that, to secure Stanford against loss by reason of such indorsements, Waterman had, in writing, assigned to Stanford his interest in said contract, and all his rights thereunder; that Waterman made default in paying the notes so indorsed, and Stanford had been compelled to pay the same; that subsequently, and on September 6, 1878, Waterman made a new note to Stanford for the amount which he had been compelled to advance as