Robinson v. Korns. with the very matter to which this statute was designed to apply. Equity: II. The respondent's claim to affirmative relief necessarily admits, as we have seen, that his deed to Turner is sufficient in its description to convey the thirty feet in controversy off the west side. of the east eighty feet of lots five and six, and this admission is well founded. It follows that unless some reason has been shown why, in equity, the deed ought not to be operative for that purpose, the appellant should recover the disputed strip; for the respondent admits that he is in possession against the terms of his deed. In such a case we must first look to the pleadings for an explanation-for a statement of some reason why the legal title ought not to prevail. There are two grounds upon which equity sometimes affords such relief-fraud and mistake. Of the first there is no hint in the record-either in the pleadings, or evidence, or argument. Of the other, the pleadings are equally silent. The answer contains no charge of such mutual mistake in the deed as will authorize a change in its terms by a court of equity. It simply charges that the premises really sold were erroneously described in the deed. There is no attempt to give a reason for this misdescription. There is no charge that it was not the deliberate act of the parties with their eyes open to the consequences. Were we at liberty to disregard the insufficiency of the pleading and give judgment upon the evidence we would not find our condition improved. Mr. Korns testified that before selling the land to Mr. Turner they both went to a lawyer's office and discussed the matter of the dedication of this street, but came to no conclusion, and made the deed. The rule that must be applied in these cases is that the mistake to be corrected must have been made Robinson v. Korns. in drawing the instrument and not in making the contract out of which it grew. [Parker v. Vanhoozer, 142 Mo. 621, 629.] This mistake must be mutual, and not unilateral. That is to say, both must agree to what the instrument shall contain, and both must act in executing it upon the belief that it is so written. This rule is illustrated in Dougherty v. Dougherty, 204 Mo. 228, 238, in which the scrivener acted for the grantees. This court said: "His mistake was the mistake of the grantees, but not the mistake of the grantor, for whom he in no way acted, under the proof in this case. The mistake is purely unilateral and one which courts of equity do not reform. [Grand Lodge A. O. U. W. v. Sater, 44 Mo. App. 1. c. 453; Meredith v. Holmes, 105 Mo. App. 1. c. 352; Brocking v. Straat, 17 Mo. App. 1. c. 305; Benn v. Pritchett, 163 Mo. 1. c. 572; Miller v. Railroad, 162 Mo. 1. c. 440-441.]” In the same case, case, quoting from Meredith v. Holmes, 105 Mo. App. 1. c. 352, this court stated the rule with reference to the quantity of proof required in such cases as follows: "So strong is the legal presumption that a written contract, unambiguous and complete in itself, contains all the terms of the agreement between the parties, that parol evidence will not be heard in an action on a contract to vary or contradict its terms. [Evans v. Mfg. Co., 118 Mo. 548; Tracy v. Iron Works, 104 Mo. 193; Black River Lumber Co. v. Warner, 93 Mo. 374; Bunce v. Beck, 43 Mo. 266.] Correlated to this rule, is the rule in equity suits to correct a written contract on the ground of mistake, that casts upon the party asserting the mistake the burden of overthrowing, by evidence that is clear and convincing, the prima-facie presumption that the contract exhibits the ultimate agreement of the parties, and of showing that the mistake was mutual. [Judson v. Mullinax, 145 Mo. 630; Parker v. Vanhoozer, 142 Mo. 621; Sweet v. Owens, 109 Mo. 1; Gaylord v. Robinson v. Korns. Insurance Co., 40 Mo. 13; Benn v. Pritchett, 163 Mc. 560.] Applying these rules to the case now before us we find that after full discussion by the parties, not only between themselves but with a lawyer, of the very point on which they now split, the effect of the dedication of Chambers avenue upon the transaction in which they were engaged, the grantor drew, signed and acknowledged, and the grantee accepted and recorded the deed in its present form, conveying land that the grantor really owned. In this suit it is sought to “reform" it by substituting land which he does not own, so that it will carry a breach of warranty on its face. Under these circumstances it is peculiarly appropriate that the reformation should require evidence clear, cogent and convincing that it was agreed between the parties that the description contended for by appellant should be used in the deed and not the description which it does contain, that the failure to do so was the result of the mutual mistake of both and that they believed, at the time the execution of the deed was completed by delivery and acceptance, that it was so written. On the contrary, there is absolutely no evidence of such a mutual mistake. The appellant testified, it is true, that he took Turner to the ground and showed him the fence as the line, but this, without more, was only a representation that the east line of lots five and six, to be conveyed in the deed, was at the fence, and not that a street was the subject of the transaction instead of the lots, and that the deed was accepted upon the theory that it was so written. The judgment of the circuit court is accordingly reversed and the cause remanded with directions to deny the affirmative relief asked in the answer; to dismiss the allegations therein in the nature of a crossbill; to dismiss also the defendant Samuel J. Turner with his costs; and to otherwise proceed to final judg Miller v. Connor. ment in the ejectment in accordance with the law as stated in this opinion. Blair, C., concurs. PER CURIAM.-The foregoing opinion of, BROWN, C., is adopted as the opinion of the court. All the judges concur. ALFRED L. MILLER et al., Appellants, v. FLORENCE C. CONNOR. Division One, May 31, 1913. 1. APPELLATE JURISDICTION: Constitutional Question: Liability Under Statute of Another State. The Supreme Court has jurisdiction "in cases where the validity of a treaty or statute of or authority exercised under the United States is drawn in question;" but the validity of no such treaty or statute or authority is drawn in question in a suit by the creditors of a bank in Colorado, which has there been adjudged insolvent, against stockholders in this State, seeking to hold them liable for the bank's debts, under a statute of that State, which makes stockholders of a bank liable for its debts in double the par value of the stock held by each. 2. 3. : How and When Raised: General Rules. In order to bring an appeal within the jurisdiction of the Supreme Court on the ground that "the case involves the construction of the Constitution of the United States or of this State," certain precedent conditions must be met: first, it must appear that a constitutional construction was essential to a determination of the case; second, it must appear that a constitutional question was raised in the trial court, and ruled on to the disadvantage of appellant; third, the constitutional question cannot be injected into the case for the first time by argument or brief of counsel; and, fourth, it must be raised timely in the trial court and kept alive in the course of orderly procedure-in the pleadings, if due to be found there; if not, then at the f first opportunity; and, sometimes on the rulings on the admission of evidence, but in that case should be kept alive in the motion for a new trial and (if necessary) in the instructions; and, in rare cases, it may be raised for the first time in the motion for a new trial or in the instructions. : Not Apparent from Record. Although there was an argument of counsel for defendant wherein it was sug Miller v. Connor. gested that, if the court admitted the decree of a Colorado court in a suit by creditors of a bank against all stockholders, seeking to hold them for its debts under à statute which makes them liable in double the par value of their stock, in which defendant was sued but not served with process and which found against her and all other stockholders in the amount of fifty-three per cent of the par value of their stock, it would be to hold her without due process of law under specified sections of the Federal and State Constitution, yet if there were many other suggestions for the exclusion of the decree, and it cannot be ascer tained which one of them operated on the mind of the trial court in his ruling excluding it, and plaintiffs do not complain in their motion for a new trial or in their briefs of any infringement upon their constitutional rights by the ruling, the construction of either Constitution is not so involved in a jurisdictional sense as to give the Supreme Court jurisdiction of plaintiff's appeal. Appeal from St. Louis City Circuit Court.-Hon. George H. Williams, Judge. TRANSFERRED TO ST. LOUIS COURT OF APPEALS. Stephen C. Rogers for appellants. Walter H. Saunders for respondent. LAMM, J.-This cause is transferred here from the St. Louis Court of Appeals, its mandate running on the theory that "a constitutional question-State and United States-is involved." No opinion accompanies the mandate and we are left to feel after the constitutional question, if happily we may find it, precisely as did that court. If our learned brethren had pointed out the constitutional questions and how they were "involved," in a constitutional sense, so as to give this court jurisdiction, it might have aided in persuading us to their view, but (being left to our own resources) we have come to a view presently announced. Attending to the pleadings, the suit is to recover $214 from defendant. It is alleged that she held two shares of stock in the State Bank, a bank organized |