vember 21, 1892. Upon this certificate as filed appeared the following indorsement: "I, John Howard, do hereby certify that T. W. Johnston, attorney, etc., owns and controls a three-fourths interest in the interest in the foregoing properties above conveyed to me. Witness my hand, this 18th day of November, 1892. John Howard." The certificate was not recorded, but remained among the files of the recorder's office. March 6, 1894, the sheriff executed a deed to the three-fourths of the one-third interest in and to the Waters Mine to one Luther J. Webber, the appellant, in which deed it was recited that Howard had assigned his said interest to T. W. Johnston, as appeared from the certificate of sale and the indorsement thereon, and that Johnston had directed and required that the deed to said interest be made to Webber. This deed was not placed of record until the 18th day of July, 1895. On the 18th day of April, 1894, Owens conveyed to P. L. Kastner and Thomas Brown, co-partners, under the firm name of Brown & Kastner, an undivided onesixth interest in and to the said Waters Mine, which deed was duly recorded on the date of its execution. On May 17, 1895, Brown & Kastner joined with J. H. Wright, one Abbendroth, and one Bowe (the latter representing interests not in controversy here) in conveying the Waters Mine to Chauncy D. Clark, a defendant in the action, and one of the appellees here. On the same day, Howard and T. W. Johnston, by one conveyance, quitclaimed all their right, title, and interest in and to said mine to said Clark. In the latter conveyance appears the recital that the said T. W. Johnston "claims no interest in said mining claim, and only signs and executes this deed to clear the title thereof of any real or imaginary cloud upon the title." The consideration named in the latter deed was $1, but the fact appears to have been that the real consideration was the sum of $150, paid by Kastner to the grantors. Subsequent to the latter conveyance, Webber obtained a judgment against Johnston, re-establishing an unrecorded deed from the latter to the former, conveying the interest in the Waters Mine attempted to be assigned by Howard to Johnston on the certificate of sale, and which had been lost by Webber. The date of this deed appears to have been March 6, 1894. The first question presented to this court, and argued by appellant in his brief, is: "Was the sale to Howard, under the execution proceedings had under Owens' judgment, valid?" The judgment under which the execution issued was rendered on the 7th of September, 1892. In making the levy, the sheriff, after reciting the issuance of the execution under this judgment, certified that he "levied upon all the right, title, and interest of H. A. Owens, and all the right, title, and interest which the said H. A. Owens had on the 15th day of January, 1891, being an undivided onethird interest, more or less, of, in, and to the Waters mining claim." In the notice of sale given by the sheriff under the levy appeared the recital that the officer had "levied upon the following described real estate, to wit: All the right, title, and interest which the said defendant Owens had on the 15th day of January, 1891, or now has, of, in, and to an undivided one-third interest in the Waters mining claim," etc. Again, in the certificate of sale to Howard, the officer recites that, under and by virtue of an execution in the case of John Howard against H. A. Owens et al., he was commanded to satisfy the judgment out of the personal property of the defendants, and, if sufficient property could not be found, "then out of the real property be longing to the said defendant on the 15th day of January, 1891, or at any time thereafter;" and it further recited that, under said writ of execution, he had levied upon "all of the right, title, and interest of the defendant H. A. Owens, being an undivided one-third interest, more or less, of, in, and to the Waters mining claim," etc. It is urged by the appellant that it appeared from these recitals that the Interest seized under execution, and sold, was not the interest which Owens possessed at the time of the issuance of the execution, to wit, September 9, 1892, but the interest which he had on the 15th day of January, 1891. There is nothing in these recitals which, in our judgment, renders the sale invalid. While the attempt was evidently made by the sheriff, under his evident misunderstanding of the execution, to levy upon the interest of Owens in the Waters mining claim possessed by him on the 15th day of January, 1891, yet the officer was careful to levy upon the interest of Howard possessed by him at the date of the levy; and the subsequent recitals in the notice and certificates of the sheriff were sufficiently guarded in this respect to render the sale effective to pass title to the interest held by Owens, the judgment debtor, at the time of the levy of the execution. The next question presented by the record is whether Brown & Kastner, at the time they obtained their conveyance from Owens, dated April 18, 1894, had constructive notice of the sale to Howard, under the execution proceedings. The certificate of sale was filed, but not recorded. Section 19, subd. 3, of the execution law of 1889, approved March 20, 1889, provides that "a duplicate of such certificate must be filed by the selling officer in the office of the county recorder of the county." There is no provision of the statute which requires the certificate to be recorded. The filing, therefore, of such duplicate in the county recorder's office, is made constructive notice of the sale to subsequent purchasers; and Brown & Kastner, in taking their deed from Owens, must be held to have had constructive notice of the sale to Howard. The sale of Owens' interest to Howard under the execution proceedings being valid, and Brown & Kastner having constructive notice of the same at the time they obtained the conveyance from Owens, the question therefore narrows down to the inquiry as to whether or not Brown & Kastner, at the time they obtained the conveyance from Howard & Johnston, dated May 17, 1894, had constructive or actual notice, or such notice as to put them upon diligent inquiry of the title obtained by Webber through his deed from Johnston and the conveyance from the sheriff. The court below held that the facts did not show that Brown & Kastner had constructive knowledge of Webber's title, or had such actual knowledge as to put them upon notice of the true state of the title, and that they must therefore be deemed to be innocent purchasers, and to have acquired a good title as against the undisclosed title of Webber. Unless, therefore, an examination of the record by this court discloses that the findings of the court below and its judgment are manifestly against the weight of evidence, under the well-settled rule in such cases, we are not privileged to disturb these findings or to reverse the judgment. ten deed was drawn up in the office of Herndon & Norris; and that Kastner then took the same, and returned with it, signed by Howard and Johnston, and drawn to Chauncy D. Clark. That the reason that the deed was made to Clark was that as the title was going to Clark from Brown & Kastner, under their agreement, the necessity for two conveyances was thus saved. That, when the deed was handed to him, the name of John Howard had been added as one of the grantors, and there had been written in the words, "it being understood that said T. W. Johnston claims no interest in said mining claim, and only signs and executes this deed to clear the title thereof of any real or imaginary cloud upon the title." Kastner testified that he was present at the conversation had between Ainsworth and Johnston, and that Johnston in that conversation had stated that he had no interest in the property, and never claimed any, and had said, "If you will make out a deed, I will go and sign it;" that, after the deed was prepared, he took it to Johnston's office, and there met Howard and Johnston; that he then paid to Howard $150, and the deed was then signed by Howard and Johnston, and delivered to him; that he knew nothing of the certificate of sale or of Howard's indorsement thereon, and did not know that Johnston had any interest in the property, or had had any interest in the same; and that he did not read the deed, and did not see what the reading was upon the face of it; that Mr. Johnston had told him nothing about having transferred an interest to Webber, but had said: "Go and get any paper that you want me to sign,-anything that you want me to do. Just get Herndon and Ainsworth to prepare it, and I will sign it." T. W. Johnston testified that his recollection of what transpired at the interview with Ainsworth connected with the making of the deed was somewhat vague and indefinite; that Kastner came to his office, remained probably one or two minutes, and that he said that "he wanted to know if I had any interest in the Waters Mine. 'No.' He said that he had run across some sort of an obstacle in the way, affecting the title, which was of a character that indicated that I had some interest in this property; and he asked if I claimed any interest in it." "I said that I had the impression that I had no interest in it. That is the impression that I now have of what I said. He left my office, and came back, and said- He asked me if I would make a deed. I have the impression-it is Appellant does not contend that Brown & Kastner had constructive notice of the deed from Johnston to Webber, or of the deed from the sheriff to Webber; but it is contended that the circumstances connected with their obtaining a deed from Howard and Johnston put them upon notice of Webber's title. These circumstances, as they appear in evidence, are as follows: It appears that on the 17th of May, 1894, Brown & Kastner had bonded their interest in the Waters Mine to one Chauncy D. Clark; that C. F. Ainsworth, Esq., was on that date in Prescott, as the agent and attorney of Clark, conducting the negotiations of sale; that an abstract of the title to the mine was shown him, which did not contain any reference to the certificate of sale; that, after being shown the abstract, he visited the recorder's office, for the purpose of verifying the same, and was then shown the certificate of sale by the recorder; that immediately he sought Johnston, and found him and Kastner on the street, and called their attention to the fact of the certificate and Howard's indorsement thereon. What was said and done at this interview and immediately thereafter was testified to by Ainsworth, Kastner, and Johnston. Ainsworth stated: That he then informed Johnston that he had found the certificate of sale, and had noted the indorsement of Howard's transferring the three-fourths interest to him. That thereupon Johnston said: "I don't claim anything by that certificate. I never did, and I don't now." That he thereupon suggested to Johnston that, if he would quit- | only an impression-that I said to him, 'I claim to Kastner, the defect in the title would be cured. That Johnston then said: "I am willing to do it, and will do it right now. If you will prepare a deed, I will sign it." That he (Ainsworth) then said: "That will cover your interest, and, as to Mr. Howard's interest, we will try and arrange that with Howard." That thereupon a typewrit53 P.-14 don't own anything to make a deed to." "Then something was said about my putting that statement in writing. I do not remember the details of that, but I do remember that I reached for my pad, which I keep on my desk, and wrote a little memorandum in pencil. I think that statement about my putting that in writing was accompanied by He a statement of something of this character: That he said that they bet I would not put that in writing. Who 'they' were, of course, I don't know. I have a right to conjecture nothing, and I have no knowledge. I immediately took the pad. I said on that pad, as I remember it,-I have not seen that paper since, substantially, I think, that I had no interest in this property; something of that kind. I have never seen the writing since. He took that, he left,-as I remember it. He came back shortly afterwards, and said, 'You make a deed.' I recollect of saying substantially this: 'I will do anything that you require of me, consistent with propriety, that will advance your interests, or enable you to perfect this trade,'-whatever it was, the details of which, as I have stated before, I did not know then, and do not now. went out again, and he again returned, and presented me this paper. I read this over hastily. Then wrote what you see here in ink, intending to indicate there what I had indicated in this note, what I had substantially said, as I remember it." "Then Mr. 'Kastner said that this thing affects John Howard likewise. Don't you think you can get for me, or for somebody,'-Mr. Clark, I suppose; I do not remember those names at all; I would not know who it was but for this paper,-'don't you think you can get for me a deed to John Howard's interest?' I said, 'Yes, sir; I think so.' 'Are you willing to try?' I said, 'Yes, sir.' He says, 'I will give you twenty-five dollars if you see him, and induce him to make me, or somebody, a deed to this interest.' I went downstairs, and met John Howard within five minutes; and the result of my conversation with John Howard was that he came up in my office, and, without reading this deed with any care, I put his name in it, and he signed it. I do not think Mr. Kastner was present. He was present during a part of my talk with Judge Howard at the foot of the stairs. I think Judge Howard and myself were alone in my office. The price agreed on was one hundred and twenty-five dollars, I think. Kastner said he did not have one hundred and twenty-five dollars, and asked me to give Howard my check, which I did, and which money, of course, he promptly returned to me. That is the substance of this transaction, as I recall it. There might have been other details. If I omit anything anywhere, I will try and refresh my memory." "Now, my recollection about that is this: It was not clear in my mind then, really, as to whom I had conveyed this property,-my interest in this property; whether it was Shirley or Webber, or Shirley and Webber. I did not then know, and did not know until I was convinced afterwards, that it was Webber; but I had a very distinct impression that I had no interest in this property, because I had conveyed it to some one; and I am forced to say, with reluctance, that I have the impres sion,-telling you frankly, my memory is not a good memory,-I have the impression that I stated that I had conveyed this property, or sold it. I do not know whether I said I made a deed to it, or what. I know I sought to create the impression that I had no interest in it, and this sort of way. But those conversations- They weren't two minutes long. They were hurried. I was busy." "This man was evidently engaged in his own transaction. He ran into my office, said so and so and left. This occurred about five times. There was absolutely no coherency about it, so far as I was concerned." "In that connection, I saw Mr. Ainsworth since I left the court room, and he told me in a conversation I had with him- If you had asked me whether I had ever said anything on this subject to Mr. Ainsworth before, I should have said emphatically, 'No.' I now know his recollection is better than mine. I will tell you of that, and shall illustrate to you the lack of reliability of my memory about material matters, where I feel no interest or especial concern. I would have sworn, if you had asked me this morning, that I never mentioned the subject in my life to that gentleman. I am convinced now I said to him substantially, about the same day, before, possibly, I had any talk with Mr. Kastner, that I had no interest in this property, or 'claimed no interest,' was what I said. That is my best recollection." Mr. Johnston's recollection being at fault as to just what was said concerning his conveyance to Webber during his interviews with Kastner, or whether anything was said upon that subject, there is no sufficient evidence to overcome Kastner's unequivocal testimony that nothing was said which gave him any intimation that Johnston had previously parted with his title in the Waters Mine to Webber, or to any one else. He was put upon inquiry, doubtless, to investigate the matter diligently and in good faith. To what extent Kastner was bound to carry his inquiries must be determined from the nature of the case. The records fail to show that any sheriff's deed had been made under the certificate of sale, though the time for redemption had long since expired. It would scarcely occur to the ordinarily prudent man that one would purchase such a title as that possessed by Johnston, and yet suffer the title to remain so incomplete, and the record silent as to his connection with this title. Consideraing, therefore, the state of the title as it existed, under the positive testimony of Kastner that he was not made aware by any declaration of Johnston that the latter had parted with his interest, and the imperfect recollection of Johnston as to what occurred during his interviews with Ainsworth and Kastner, we cannot say as a matter of law that the court below erred in finding, as it necessarily must have done, that Brown & Kastner were innocent purchasers for value of the interest obtained by Howard under his sheriff's sale, and transferred to Johnston by the indorsement appearing thereon. Even were we of the opinion that this finding was not supported by the weight of evidence, we could not disturb it under the existing rule governing appellate courts, unless the preponderance of evidence against the finding be so marked that no reasonable view of the testimony can be taken which will support it; and we think that a reasonable view of the testimony can be taken which will support the contention of the appellees that they are innocent purchasers for value. The judgment is therefore affirmed. STREET, C. J., and DAVIS and DOAN, JJ., concur. (6 Idaho, 87) CHRISTENSEN v. HOLLINGSWORTH (Supreme Court of Idaho. May 6, 1898.) REFORMATION OF CONTRACT COMPLAINT ALLEGATION OF MISTAKE-JOINDER OF ACTIONS-REFORMATION AND FORECLOSURE OF MORTGAGE CERTIFICATE OF ACKNOWLEDGMENT-JURY TRIAL. 1. Allegation in complaint that parties to a mortgage intended that certain land (describing it) should be described in and conveyed by such mortgage, and that the scrivener, in drawing the mortgage, omitted, through mistake, the number of the section in which such tract was situated; and prayer for reformation. Held sufficient to grant reformation. 2. A mortgage may be reformed and foreclosed in the same action. 3. A clerical mistake in the description of land intended to be mortgaged by a married woman may be corrected upon a proper showing. 4. A substantial compliance with the provisions of section 2960, Rev. St., in the certificate of acknowledgment of a married woman, is all that is necessary. 5. The guaranty found in section 7, art. 1, of the constitution, that the right of trial by jury shall remain inviolate, was not intended to extend the right of trial by jury, but simply to secure that right as it existed at the date of the adoption of the constitution. 6. Such provision does not guaranty a jury trial in equitable actions. (Syllabus by the Court.) Appeal from district court, Latah county; W. G. Piper, Judge. Action by John Christensen against H. P. Hollingsworth and wife. Judgment for plaintiff. New trial denied, and defendants appeal. Affirmed. George W. Goode, for appellants. Sweet & Steele, for respondent. SULLIVAN, C. J. This action was brought by the respondent, Christensen, to reform and foreclose a certain real-estate mortgage given to secure certain promissory notes. The answer denies the execution of said mortgage, and, as another and separate defense, avers that the defendants (who are appeilants here) are, and were at the date of the execution of said mortgage, husband and wife, and that they occupied the premises described in the complaint as a resi1 For opinion on rehearing, see 53 Pac. 271. dence; that the same was community property; and that the acknowledgment of the execution of said mortgage by the said Mary E. Hollingsworth was not taken as required by the provisions of sections 2956 of the Revised Statutes of Idaho, in that she was not made acquainted with the contents of said mortgage by the officer taking the acknowledgment, on an examination without the hearing of her husband; and that said mortgage is void for that reason. When the cause was reached for trial, the appellants demanded that the issues of fact be tried by a jury, which was denied by the court. Trial was had to the court without a jury, and judgment and decree of reformation and foreclosure were made and entered in favor of the respondent. Thereupon a motion for a new trial was interposed by the appel lants, and overruled by the court. This appeal is from the judgment and the order overruling the motion for a new trial. The admission of any evidence sustaining the allegations of the complaint touching the reformation of the mortgage is assigned as error. It is contended that the allegations of the complaint are not sufficient, in this, to wit: It fails to allege mutual mistake, with all of its attendant circumstances, and fails to allege that such mistake was not through the negligence of the plaintiff. While the allegations are not as full and complete as the facts, as shown by the evidence, would warrant, we think they are sufficient to allow the introduction of testimony to show whether it was the intention of the defendants to include said 80-acre tract of land in said mortgage, and show whether the omission of the number of the section in which said tract was situated was omitted from said description through mistake of the person who drew said mortgage. It is contended that a mortgage cannot be reformed and foreclosed in the same action and that the court erred in permitting refor mation and foreclosure in the same action There is nothing in this contention. The recognized rule, under our Code of Civil Pro cedure, is that a mortgage may be reformed and foreclosed in the same action. In Hutchinson v. Ainsworth, 73 Cal. 453, 15 Pac. 82, it is held that a complaint which seeks to reform a mortgage, and to foreclose the same as reformed, states but one cause of action. See, also, Bliss, Code Pl. §§ 166172. It is also contended that no reformation of an instrument can be had against a married woman, especially when such reformation is for the purpose of compelling her to convey more property than the instrument already conveys. The mortgage in question was executed on the 27th day of November, 1893, and contains descriptions of three distinct parcels or tracts of land. The alleged mistake occurs in the first description, which describes an 80-acre tract, except that it fails to state the number of the section in which said tract is situated. In a subsequent mortgage given by these appellants to the Plano Manufacturing Company on the 11th day of May, 1894, they admitted that said 80-acre tract was included in the mortgage involved in this action. Under all of the evidence found in the record, it is clearly shown that it was the intention of the defendants to include said 80-acre tract in said mortgage, and through the mistake of the draftsman the number of the section was omitted. By the reformation of said mortgage no new right is conferred. It is merely carrying into effect the intention of the parties. If such mistake could not be corrected, gross injustice would result. Equity looks on that as done which ought to be done. The object and policy of our statutes in regard to the transfer or conveyance of the separate property of the wife, or of the property on which the husband and wife may reside, are not controverted or thwarted by permitting such reformation. Society v. Meeks, 66 Cal. 371, 5 Pac. 624; Hayford v. Kocher, 65 Cal. 389, 4 Pac. 350. A mistake in the description of land intended to be conveyed or mortgaged by a married woman may be corrected upon a proper showing. Hamar v. Medsker, 60 Ind. 413; Carper v. Munger, 62 Ind. 481; Jones, Mortg. (3d Ed.) § 99; Dembitz, Land Tit. § 54; Tichenor v. Yankey, 89 Ky. 508, 12 S. W. 947. It is contended that the certificate of acknowledgment to said mortgage is defective, and not in compliance with the provisions of section 2960, Rev. St. The certificate is as follows: "State of Idaho, County of Latah-ss. I, J. I. Mitcham, justice of the peace in and for said county, in the state aforesaid, do hereby certify that A. P. Hollingsworth and Mary E. Hollingsworth, his wife, personally known to me as the real persons whose names are subscribed to the foregoing deed, appeared before me this day in person, and acknowledged that they executed and delivered the said deed, as their free and voluntary act, for the uses and purposes therein set forth. And I further certify that Mary E. Hollingsworth, wife of said A. P. Hollingsworth, acknowledged to me, on an examination apart from, and without the hearing of, her husband, and after I had made known to her the contents of said instrument, that she executed the same freely and voluntarily, without fear or compulsion, or under influence of her husband, and that she did not wish to retract the execution of the same. Given under my hand and official seal this 27th day of November in the year of our Lord one thousand eight hundred and ninety-three. J. I. Mitcham, Justice of the Peace." Said certificate does not follow in the exact words of the statute, nor is it necessary that it should do so. substantial compliance with the provisions of said section is all that is required, and we think said certificate substantially complies A therewith. Bank v. Rauch (Idaho) 51 Pac. 764. It is contended, under the provisions of section 7, art. 1, and section 1, art. 5, of the constitution of Idaho, that the defendants were entitled to have the issues of fact tried by a jury, and that the court erred in denying appellants' motion for a jury trial. Section 7, art. 1, is as follows: "The right of trial by jury shall remain inviolate; but in civil actions three-fourths of the jury may render a verdict, and the legislature may provide that in all cases of misdemeancrs five-sixths of the jury may render a verdict. A trial by jury may be waived in all criminal cases not amounting to felony by the consent of both parties, expressed in open court, and in civil actions by the consent of the parties, signified in such manner as may be prescribed by law. In civil actions and cases of misdemeanor the jury may consist of twelve, or of any number less than twelve upon which the parties may agree in open court." Section 1, art. 5, is as follows: "The distinctions between actions at law and suits in equity, and the forms of all such actions and suits, are hereby prohibited; and there shall be in this state but one form of action for the enforcement or protection of private rights or the redress of private wrongs, which shall be denominated a civil action; and every action prosecuted by the people of the state as a party against a person charged with a public offense for the punishment of the same, shall be termed a criminal action. Feigned issues are prohibited, and the fact at issue shall be tried by order of the court before a jury." Said section 7, art. 1, of the constitution, declares, inter alia, that "the right of trial by jury shall remain inviolate"; and section 1, art. 5, declares, "The distinctions between actions at law and suits in equity, and the forms of all actions and suits, are hereby prohibited," etc. It is the settled doctrine in a number of states having constitutional provisions similar to those above cited that those provisions must be read in the light of the law existing at the time of the adoption of the constitution. Said provisions were not intended or designated to extend the right of trial by jury, but simply to secure that right as it existed at the date of the adoption of the constitu tion. City Council v. O'Donnell (S. C.) 7 3. E. 523; Lynch v. Railway Co. (N. Y. App.) 29 N. E. 315; Heacock v. Hosmer, 109 Ill. 245; Insurance Co. v. Scammon, 123 Ill. 604, 14 N. E. 666; Ex parte Schmidt, 24 S. C. 363. The guaranty that "the right to trial by jury shall remain inviolate" has no reference to equitable cases. Flaherty v. McCormick, 113 Ill. 538; Ward v. Farwell, 97 Ill. 593; Heacock v. Hosmer, supra. This being an equitable action, it was not error to deny defendants' application for a jury trial. We have made a careful examination of |