Sweetser

The complaint in this case was filed to obtain a decree reforming a deed executed by defendant to plaintiffs’ testator, so as to include a tract of land not included therein, and that said tract be conveyed to them in their representative capacity. The plaintiffs alleged that by the agreement of their testator and the defendant the tract was agreed to be embraced in the deed, and was omitted therefrom by the mistake and inadvertence of the scrivener. The defendant denied such agreement and mistake, and alleged that the deed contained all the land which he had agreed to convey. Special issues were submitted to a jury, and the verdict was, in effect, in favor of defendant. The court filed findings as to all the facts in issue, in which, after reciting the fact that a jury had been impaneled to try special issues, and had rendered a verdict, it is stated: “Now, from said verdict and the testimony adduced in said cause, after due consideration, the court finds the following facts,” etc. On this appeal points are presented by the plaintiffs, viz.:

1. The court instructed the jury that as to the first issue presented to them (which was merely as to whether the land of defendant was…