delivered the opinion of the court.

This was a proceeding in the nature of a bill in equity for the specific execution of a contract for the sale of land. The petition charged that the defendant sold to the plaintiff certain real estate in the city of St. Louis for the price of $6,412.50, one third to be paid in cash and the remainder on credit, to be secured by the notes and deed of trust of the plaintiff on the property. Defendant, to make a deed for the property when the cash payment was made, averred the making of the cash payment and the giving of the notes and deed of trust by plaintiff; averred his readiness and willingness to pay the deferred payment at maturity, but charges that the defendant had “ neglected and refused, and still neglects and refuses to convey the lots of ground, or any of them, to the plaintiff, although often requested.” The answer of the defendant admits the sale upon the terms stated in the petition, but avers performance of the agreement on the defendant’s part by making and delivering a deed for the property to the plaintiff, describing plaintiff therein by the name of John B. Colt. Also, averred that in the deed of trust made by the plaintiff he described himself by the name of John B. Colt; that plaintiff received the deed made by defendant and made no objections to it until after the deferred payments had become due; that on plaintiff’s making the objection to the deed, the defendant offered to make plaintiff a new deed to correct the mistake if plain*122tiff would pay the notes then due, or even the interest, but that he refused to do so, and that thereupon the trustees in the deed of trust proceeded to sell, and did sell, the trust property, which was purchased by defendant, but a large portion of which he had sold to strangers before the institution of the suit.

On the trial the evidence showed that the name of the plaintiff was James B. Colt, not John B. as described in the deed; and in every material respect sustained the allegations in the answer. The court found for the defendant and dismissed the plaintiff’s petition. The usual motion for new trial was presented and overruled, and exceptions taken, and the case brought here by appeal. The finding of the court is fully sustained by the law and the evidence. This is no case for a bill for the specific execution of a contract. It cannot, in fairness, be said, as the petition assumes, that the contract of sale was open and unexecuted, although the deed of the plaintiff was made in the wrong name, and, in that respect, materially defective. It was such a documentas a court of equity, in a proper case, would, by the exertion of its reformatory power, put in shape and impart validity to. If the plaintiff could have maintained an action at all under the facts as they existed at the time of the institution of the suit, it should have been an action to reform the deed already made, and not an action for a new conveyance. The issues in the case threw upon the defendant the burden of proof, and regularly he ought to have been required to proceed first with his proofs, but the court below ruled otherwise, to which the plaintiff excepted. As a question of practice, we think the court erred; but inasmuch as, in the view we have taken of the case, the error could do him no harm, we are not warranted in reversing for that cause.

The judgment is affirmed,