
    BENJAMIN P. FAIRCHILD, Plaintiff and Appellant, v. THERESA LYNCH, Defendant and Respondent.
    I. AGENCY FOR THE RECEPTION OF A NEED.
    
    
      1. Prima vacie evidence ov.
    (<r„) Conveyance of the property by the alleged principal and admissions by him in an answer in another action, is.
    
    1. F and 0 entered into a contract whereby F agreed to convey to C certain premises. 0 directed F to make the deed to L. In pursuance of such direction F executed a. deed conveying the premises to L and delivered it to G' for L. This deed conveyed the premises “subject to a certain mortgage made by F.......which said mortgage the jiarty hereto of the first part assumes and agrees to pay as part of the consideration hereinbefore expressed.’’ L subsequently conveyed the premises to B by a deed in which her grantee agreed to pay said mortgage as part of the purchase money. In an action subsequently brought against F, L, B, and others, to foreclose this mortgage, the complaint alleged that F sold and conveyed the premises to L by a deed in which “ the said L assumed said mortgage as part of the consideration on such purchase and agreed to pay the same.” L, by her verified answer to this complaint., admitted that F sold and conveyed to her, and further alleged “ and this defendant received the said deed and this defendant admits that this defendant received said land subject to said mortgage,” but she therein denied that she had ever agreed to pay the mortgage, and denied that under the deed to her she was bound to pay it. In that action judgment of foreclosure and sale was rendered on consent of her attorney which did not charge her with personal liability for any deficiency.
    Held,
    
      prima facie evidence that 0 was L’s agent for the purpose of accepting the deed from F to her, and that by his acceptance L became bound to perform any agreement on her part contained in it.
    1. Assumption of mortgage.—Also held that if, on a proper construction of the deed it contained a clause whereby the property was conveyed “subject to a mortgage which the party of the second part assumed and agreed to pay,” L was bound to perform such agreement, and to save F harmless from any liability on the mortgage.
    
    II. EEEE—OONSTEUOTION OF.—ORANGE OF WOEES.
    
    
      . 1. Mortgage assumption clause.
    
      (a.) The word “first” turned in “ second.”
    
    
      1. A deed contained the following clause “subject nevertheless to a certain mortgage .... which the party hereto of the first part assumes and agrees to pay as part of the consideration hereinbefore expressed.” The word “first ” was construed to read and mean “second," and as thus construed constituted an agreement by the grantee to pay the mortgage.
    III. MAXIM. 
      
      Verba intentioni etnone contra debent inservire, ut res mag is mleat qnam pereat—applied.
    IV. EQUITY AG TIGN.
    
    1. Cause op action at law mat b$ becovebed in it.
    (a.) If a plaintiff brings an action for equitable relief, and on the trial establishes a cause of action at law, he may, although he fails to establish any right to equitable relief, recover judgment on such cause of action at law, the defendant not having demanded "a trial by jury or raised any objection.
    
    Before Sedgwick and Sandford, JJ.
    
      Decided May 8, 1877.
    Appeal from a judgment in favor of defendants, for costs, entered on dismissal of complaint after a trial at special term by the court without a jury.
    The complaint averred the making- of a contract between the plaintiff and one Leonard, for the sale and conveyance to the latter of a house and lot of land on the northerly side of Twenty-seventh street, in the city of Hew York, for the price or sum of $21,500, to be paid partly in cash, parity by a conveyance of other premises to the plaintiff, and partly by the purchaser's assuming the payment of a mortgage for $15,000, then on the premises, and subject to which the plaintiff’s conveyance thereof was to be made ; that Leonard assigned the said agreement to the defendant who afterward completed the purchase, accepting from the plaintiff a warranty deed of said premises, in which it was stated that said premises were conveyed subject to the mortgage, the same forming part of the consideration money of such conveyance ; that it was thereupon intended, both by the said plaintiff and said defendant, that the said deed should further state that the defendant thereby assumed and agreed to pay said mortgage as part of such consideration money, but by a mere clerical error and mistake, unknown to and unobserved by both plaintiff and defendant, it xvas stated in said deed that “the party of the first part thereto, that is to say, the plaintiff herein, thereby assumed and agreed to pay the said mortgage, as part of the consideration money thereinbefore expressed. The complaint further averred that the defendant accepted said deed, intending thereby to assume and in equity and good conscience did assume and agree to pay said mortgage, as part of the consideration of her purchase; that by xdrtue of such conveyance defendant became seized, in fee of said premises subject to said mortgage, and became thereby bound to indemnify and save harmless the said plaintiff from the said mortgage and all the conditions therein. The foreclosm-e of the said mortgage by the assignees thereof xvas also averred, the result of such foreclosure being a judgment against the plaintiff for a deficiency of $5,585.71. Then folloxved an averment of the payment of said sum by the plaintiff to the assignees of the mortgage, as required b}^ such judgment-, whereby “an action has accrued to the said plaintiff to demand and have of and from the defendant herein the sum of $5,585.71, xvith interest from March 3, 1875,” and a demand of judgment against the said defendant, (1), for a reformation of the deed, by correcting the mistake above mentioned, and (2), for the recovery from the-defendant of the said sum of $5,585.71, xxfith interest.
    The defendant answered denying any knowledge or information as to the alleged agreement betxveen the plaintiff and Leonard, and anjr intent on her part to assume or pay the said mortgage. She averred that she paid Leonard, xyho, as she was informed and beliex-ed, oxvned the premises, the sum of $11,000, as the full purchase price thereof, and xvas to take the same subject to a mortgage of $15,000, represented to her as being upon the said premises ; but, that she did not, in any way, manner or form, agree to assume or become liable personally for the payment of said mortgage. She further denied that by reason of anything in said deed contained she became or ever was or is now bound to indemnify the said plaintiff or to save Mm harmless from the said mortgagee.
    The answer put in issue all the allegations of the complaint not specifically admitted, and set up affirmative defenses, which it is unnecessary to state.
    Upon the trial the plaintiff proved, among other tilings, that on February 14, 1873, he was seized in fee and possessed of the house and lot described in the complaint; that on February 15, 1873, he mortgaged the same to one Luyster, to secure the payment of $15,000, with interest thereon ; that on February 5, 1873, he made an agreement with William Leonard to sell and convey to him the said premises for the price of $21,500, subject to the said mortgage, and to the payment thereof by Leonard as part of such contract price; that in and by said agreement Leonard agreed to purchase said premises on the terms and conditions therein mentioned, and to pay said purchase money by assuming the payment of said mortgage as part thereof, and to pay the residue partly in cash and partly by a conveyance of other property to the plaintiff; that subsequently to said February 5, 1873, Leonard directed the plaintiff to execute a deed to the defendant herein, instead of executing the same to the said Leonard, and that on or about February 18, 1873, the plaintiff, for value received, and by direction of Leonard, executed and delivered to the defendant a deed of said premises, bearing date February 18, 1873, whereby the said plaintiff, therein described as the party of the first part thereto, for an expressed consideration of $26,000,— recited to have been paid to Mm by the defendant, who was therein described as the party of the second part, conveyed to said defendant the said premises, “ subject, nevertheless, to a certain indenture of mortgage given by the party hereto of the first part to secure the principal sum of $15,000, and interest, . . . which said mortgage the party hereto of the first part hereby assumes and agrees to pay as part of the consideration hereinbefore expressed.”
    The plaintiff further proved that on April 1, 1873, by deed bearing date on that day and duly executed under her hand and seal, the defendant for the consideration therein expressed of $28,000, conveyed the said premises to one Edward D. Bell, describing them in and by said deed as “the same premises conveyed to the said party of the first part, (the defendant) by Benjamin P. Fairchild, (the plaintiff) by deed, dated February 18, 1873, and recorded, February 20, 1873;” such conveyance was made, subject to the mortgage mentioned and referred to in the deed from plaintiff to defendant, and Bell, the defendant’s grantee, therein and thereby assumed and agreed to pay the said mortgage as part of the consideration of the said conveyance from defendant to him.
    The plaintiff .further proved that the deed executed by him to defendant was drawn by an attorney, one George F. Demurest, at his request; that he handed to Demurest Ms contract with Leonard and instructed Mm to prepare a deed in accordance therewith, substituting the name of the defendant for that of Leonard, as grantee ; and that he intended to execute a deed subject to the mortgage, the grantee assuming and agreeing to pay it. He testified that he never knew of the phraseology of the deed whereby it was stated that the party of the “first” part assumed payment of the mortgage, until the answer of the defendant was served in the present suit. Demurest testified that he received instructions from the plaintiff to prepare the deed in accordance with the contract- between the plaintiff and Leonard, and delivered the deed to Leonard for the defendant. It was not delivered to the defendant personally. He supposed the deed conformed to the contract, until after the commencement of this suit; and he testified, without objection, that the clause of the deed, whereby the party of the first part thereto assumed and agreed to pay the mortgage as part of the consideration therein expressed, was strictly and clearly a clerical error, as the intention was that the grantee should assume the mortgage.
    The plaintiff further proved that by sundry mesne assignments thereof the said mortgage with the bond therein mentioned was transferred to the trustees of Elizabeth 0. Chauncy, deceased, and that, the same having become due, by reason of default in the pay ment of interest, agreeably to certain conditions therein contained, an action was commenced by the said trustees in the supreme court, on September 23, 1874, for the foreclosure of said mortgage. Plaintiff, defendant and said Bell were, with others, made parties defendant, and such proceedings were thereupon had, that a judgment was finally rendered in said suit, for the recovery by said trustees of the said sum of $5,585.71, against the said plaintiff, the said sum being a deficiency of the proceeds of the sale of said mortgaged premises, to satisfy the amount adjudged to be due to said trustees upon the said mortgage.
    The plaintiff also proved that he had paid the said sum with interest to said trustees as required by said judgment.
    By the record of the said judgment which was put in evidence on the part of the plaintiff, it appeared that the defendant answered the complaint in foreclosure, and, by her answer thereto, expressly admitted that the plaintiff herein sold and conveyed to her the mortgaged premises, and that she received the deed therefor. She also admitted that she received the said land, subject to the said mortgage, and afterward sold and conveyed said land to said Bell subject thereto; but she therein denied that she had ever agreed to pay the mortgage, and denied that under the deed to her she was bound to pay it. The judgment of foreclosure and sale was rendered upon the consent of her attorney, and did not charge her with personal liability for any deficiency.
    At the close of the evidence on the part of the plaintiff, counsel for defendant moved to dismiss the complaint on the ground that there had been no proof that the defendant adopted or agreed to the contract between plaintiff and Leonard, or in any way agreed to assume the mortgage.
    The court dismissed the complaint, counsel for plaintiff duly excepting, and judgment was thereupon entered in favor of the defendant.
    
      S. F. Cowdrey, attorney, and of counsel for appellant, urged:
    I. The cause of action, stated in the complaint, entitles plaintiff to both the equitable and legal relief prayed for, and those causes of action were properly joined (Code, § 167; Haire v. Baker, 5 N. Y. 362 ; Bradley v. Aldrich, 40 Id. 509, 511, 512; Sternberger v. McGovern, 56 Id. 20; Bruce v. Kelly, 5 Hun, 229 ; Anderson v. Hunn, 12 Sup. Ct. 79; Mann v. Fairchild, 2 Keyes, 112 ; Heywood v. City of Buffalo, 14 N. Y. 540 ; McKeon v. See, 4 Robt. 464; Margraf v. Muir, 57 N. Y. 159 ; Van Santvoord Eq. 15, 19, 23).
    II. The right to legal relief being shown by the complaint, the court does not lose its right to grant such legal relief, even if the plaintiff fails to obtain the equitable relief prayed for (Barlow v. Scott, 24 N. Y. 45; Sternberger v. McGovern, supra; Bradley v. Aldrich, supra; N. Y. Ice Co. v. N. W. Ins. Co. of Oswego, 23 N. Y. 357; Wells v. Yates, 44 Id. 525, and cases cited at p. 531).
    
      III. The circumstances of the case show that the words used in the habendum clause of the deed, by which “ the party of th & first part” assumes payment of the mortgage, were inserted by mistake, that they do not declare the intention of the parties, and that the intention of the parties was that “the party of the second part ’ ’ should assume such payment.
    IV. But the defendant did receive the deed, and she fully consummated the contract of sale, in precisely the same manner as Leonard would have done. She conveyed, or caused to be conveyed (it matters not which), to the plaintiff, the lots described in the contract ; and she paid, or caused to be paid in cash, the balance of the purchase-money according to the contract ; and, she sold the property to Bell in 1873, requiring Bell to assume payment of the mortgage (Vide Campbell v. Smith, 8 Hun, 6).
    V. If the defendant did not know when the deed was delivered what its contents were, she must have believed that the deed conformed to the contract. If she did know the contents of the deed as delivered to her, she was guilty of a fraud on the plaintiff, and this alone is sufficient to authorize reformation of the deed (Wells v. Yates, 44 N. Y. 525; Cited and approved, Bryce v. Lorillard Fire Ins. Co., 55 Id. 243. The fraud need not be set forth in complaint, Ib.).
    
    VI. There is no principle of equity more fully established than that courts of equity will reform and correct written instruments where, from accident or mistake, they fail to express the intention of the parties thereto. As to accident: Willard's Eq. Jur. 51, 52, 54, 55, 57 ; Story's Eq. Jur. § 78. As to mistake: Willard's Eq. Jur. 54, 59, 69, 72, 73, 74, 75, 78, 79 ; Fonblanque's Eq., book 1, ch. 3, § 1, and notes. (Gillespie v. Moon, 2 Johns. 585; Lyman v. United Ins. Co., 17 Id. 375; Wood v. Hubbold, 10 N. Y, 484; Rider v. Powell, 28 Id. 312). Citing and approving: Keisselbrack v. Livingston, 4 Johns. 144; Moale v. Buchanan, 11 Gill & Johnson, 325; De Peyster v. Hasbrouck, 11 N. Y. 582 ; Lyman v. United Ins. Co., 17 Johns. 375; Matthews v. Terwilliger, 3 Barb. 50; Quick v. Stuyvesant, 2 Paige, 84; Haire v. Baker, 5 N. Y. 357; Kerr on Frauds, 338, 345, 349, 354, 341; Gates v. Green, 4 Paige, 355; Wells v. Yates, 44 N. Y. 525; Kent v. Manchester, 39 Barb. 595; Mills v. Lewis, 55 Id. 179; Smith v. Mackin, 4 Lans. 41; Story's Eq. Jur. §§ 110, 153, 157, 159, 160, 163, 164 f, 168). Even although it be the mistake of one party only (Andrews v. Gillespie, 47 N. Y. 490 ; Nevins v. Dunlap, 33 Id. 680). A mistake of the scrivener who prepared the instrument, is sufficient ground for reforming the instrument (Nevins v. Dunlap, supra; Wood v. Hubbell, 10 N. Y. 484; Willard's Eq. 73 ; Story's Eq. § 164, f; Huss v. Morris, 63 Pa. 367, note A; Van Darge v. Van Darge, 23 Mich. 321; Hunt v. Rousmaniere’s Admrs., 1 Peters, 13; cited and approved in Pitcher v. Hennessy, 48 N. Y. 424; Kerr on Frauds, 349). Relief will be granted where the mistake is fairly implied from the nature of the transaction (Story's Eq. § 162 ; Kerr on Frauds, 354).
    VII. But aside from the question of the plaintiff’s right to equitable relief, the plaintiff is entitled to judgment on the covenant in the deed, as it stands, without any reformation. His remedy is completely established on legal grounds alone.
    
      Rules of Construction.—The construction shall be favorable to apparent intent of parties (Touchstone, 86, 87; Sanders v. Betts, 7 Wend. 287). Held, in this case, that the words “party of the second part,” in a covenant in a deed, mean “party of the first part.” The construction must be upon the entire deed, one part to help to expound another (2 Parsons on Con. 501; Ludlow v. McCrea, 1 Wend. 231; Tabb v. Archer, 3 Henn. & Mun. 435; Horry v. Horry, 3 Dessaus. 
      115 ; Rawle on Cov. 697; 2 Kent's Com. 556; Sumner v. Williams, 8 Mass. 214; Fowle v. Bigelow, 10 Id. 379; Hopkins v. Young, 11 Id. 302; Van Hagin v. Van Rennselaer, 18 Johns. 420).
    VIII. The defendant, the grantee named in the deed, is bound by the covenants therein contained, although not signed by her (Atlantic Dock Co. v. Leavitt, 54 N. Y. 35, and cases cited; Trotter v. Hughes, 2 Kern. 74 ; Belmont v. Coman, 22 N. Y. 438; Spaulding v. Hallenbeck, 35 Id. 206 ; Ricard v. Sanderson, 41 Id. 179).
    IX. The defendant, although a married woman, having power to purchase the land, and having purchased it for herself—having, also, subsequently conveyed it as her separate estate, had power to make contracts relative thereto (Laws of 1860, 157, § 3, [amended] Laws of 1862, 343, § 1; Frecking v. Rolland, 53 N. Y. 422; Corn Ex. Fire Ins. Co. v. Babcock, 42 Id. 613 ; Sigel v. Johns, 58 Barb. 620 ; Ainslie v. Mead, 3 Lans. 116; Yale v. Dederer, 22 N. Y. 450; Rowe v. Smith, 55 Barb. 417 ; Rowe v. Smith, 45 N. Y. 230; Ballin v. Dillaye, 37 Id. 35 ; Vrooman v. Turner, 8 Hun, 82).
    
    
      William G. Bussy, attorney, and of counsel for respondent, urged:
    I. The action is brought in equity, to reform a deed (see complaint). To entitle a party to a decree reforming a written instrument, the plaintiff must bring himself 'within the following rules : (1.) The mistake must have been a mutual mistake, and must be plain, and clearly proved. (2.) The mistake must be of fact, not of law; and a mistake as to the meaning of language is a mistake of law. (3.) It must be clearly shown to the court what the real contract was. If any doubt be left on this point, the written contract cannot be disturbed (Kent v. Manchester, 29 Barb. 595 ; Mills v. Lewis, 37 How. Pr. 418; 55 Barb. 179; Fennel v. Wilson, 2 Abb. Pr. N. S. 466 ; Lyman v. United Ins. Co., 17 Johns. 372 ; Marvin v. Bennett, 26 Wend. 168 ; O’Donnell v. Harmon, 3 Daly, 424 ; Hetman v. Beardsley, 2 Johns. Ch. 585; Phoenix Fire Ins. Co. v. Gurney, 1 Paige, 278 ; Boardman v. Davidson, 7 Abb. Pr. N. S. 939 ; Nevins v. Dunlap, 33 N. Y. 676; 1 Story’s Eq. Jur. §§ 155, 66).
    II. In this case the plaintiff not only fails to prove the basis of his compláint, that the defendant intended to assume the mortgage, but it was clearly proved by plaintiff that defendant never entered into any contract or agreement, verbal or otherwise, with, or made any promises to the plaintiff; nor did she pay any part of the consideration. On the contrary, the contract was made by plaintiff with Mr. Leonard ; the consideration was paid by Mr. Leonard ; the deed was actually delivered to Mr. Leonard, and the deed was made to defendant simply because Mr. Leonard asked it, and because, as plaintiff understood, Mr. Leonard had made a trade with defendant. There is not only nothing to connect the defendant with the transaction but the evidence shows positively that she had nothing to do with the transaction in question.
    III. There is no delivery of the deed to the defendant (Perstetson v. Hughes, 65 Barb. 134).
    IV. A conveyance made “subject” to a mortgage does not bind the grantee to pay the mortgage (Minor v. Terry, 6 How. Pr. 208 ; Binsse v. Paige, 1 Keyes, 87).
    Y. The question of intent on the part of defendant to assume the mortgage was a question of fact simply ; and “ the rule that the report of the referee, like the verdict of a jury, is conclusive as to the questions of fact, is applicable to the findings of a judge. He takes the testimony, hears and sees the withesses, and is quite as well able as a jury or referee to arrive at a right conclusion as to the facts” (N. Y. Superior Court, Ritter v. Cushman, 35 How. Pr. 284 ; Lewis v. Greider, 49 Barb. 606).
    
      
       Note.—Of course, if the facts constituting the legal cause of action are not averred in the complaint and the defendant raises the point that although the facts proven constitute a legal cause of action, yet such cause of action is not complained upon, no recovery can be had thereon.
    
   By the Court.—Sedgwick, J.

The acceptance by defendant Lynch, of the conveyance of plaintiff to her, would have held her to the performance of any agreement on her part stated therein (Atlantic Dock Co. v. Leavitt, 54 N. Y. 35; Spaulding v. Hallenbeck, 35 Id. 206), although she did not sign. In her answer in this action she denied ever accepting the deed, averring in substance, that when she conveyed the property, she supposed that the plaintiff had conveyed to Leonard and Leonard to her. The plaintiff took the position, that Leonard acted as defendant’s agent when he accepted the conveyance made by plaintiff. The evidence on this issue was favorable to plaintiff, and there was no conflicting or explanatory testimony. The defendant had conveyed the land by a deed, in which her grantee agreed to pay the mortgage in question, “the same being a part of the purchase money of this conveyance.” In the foreclosure action of this mortgage, the complaint alleged that Fairchild (who is plaintiff here) sold and conveyed the premises to Lynch (the defendant here) by a deed in which “ the said Theresa Lynch assumed the said mortgage as part of the consideration on such purchase and agreed to pay the same.” She, by her verified answer, admitted that the present plaintiff sold and conveyed to her. Further, her answer alleged, “and this defendant received the said deed. And this defendant admits that this defendant received said land subject to said mortgage,” but she therein denied that she had ever agreed to pay the mortgage, and denied that under the deed to her, she was bound to pay the mortgage.

There was enough evidence, therefore, that Leonard acted as her agent in fact in accepting the conveyance, and that she thereupon became bound to perform any agreement on her part contained in it. The appellant claims that the following clause is an agreement by her to pay the mortgage, viz: “Subject nevertheless to a certain indenture of mortgage, given by the party hereto of the first part to secure the principal sum of $15,000 and interest, which said mortgage is recorded, &c., and which said mortgage the party hereto of the first part assumes and agrees to pay, as part of the consideration hereinbefore expressed.”

A correct interpretation of this is that the mortgage is to be paid by the party of the second part, without a resort to the contract which the conveyance consummated or to any other extrinsic facts. There was plainly a mistake of the pen. There is no ambiguity in the words, but there is a mistake. The manifest intent was that whoever was to pay the consideration agreed to pay the mortgage. Theresa Lynch was to pay it, and she was by an error that happens often in speech, in writing, and in printing, designated as the party of the first part. There is no doubt as to who was meant to be designated.

If it is necessary to give a rule, which justifies this conclusion, that rule is verba intentionietnone contra debent inservire, ut res magis valeat quam pereat. This requires that the whole of the instrument shall be examined, and any part which is inconsistent with or repugnant to the intent of the whole instrument, as is shown with certainty by the other parts, is to be rejected or modified according to the intent.

In Jackson v. Topping, 1 Wend. 890, there was a condition that if the grantee neglected to pay certain debts of the grantor, and suffered the grantor to be put to cost or trouble on account of the same, the grantor might re-enter, &c. The case was that some of the debts had not been paid, but the grantor had not been put to any cost or trouble on account of such debts.' Although the law is never more subtle and exacting than in construing a condition, so that there may be no forfeiture, the court held that in view of the whole instrument the conjunction “and” should be made to mean “ or,” and that a mere neglect to pay the debts without more, was a breach.

In Sanders v. Betts, 7 Wend. 287, the covenant of warranty against all persons claiming ‘ ‘ from and under him the said party of the second part” was construed so as to reject as repugnant to the rest of the covenant the words “the said party of the second part,” although the legal effect would be the same, as if the words were written party of the first part (Gardner v. Gardner, 10 Johns. 47).

In Buck v. Burk, 18 N. Y. 339, the contract was to deliver goods at not above 25 per cent, of the cost price, and the court held, counsel not arguing to the contrary, that it meant, 25 per cent, over and above the cost price, inasmuch as no other rational interpretation could be given to the terms, and the nature of the transaction and the circumstances forbidding any other construction.

In Morse v. Salisbury, 48 N. Y. 637, the action involved title to land, under a written contract made by B, which purported to convey all “ the land and timber excepting the hard wood ón 100 acres of land.” The contract was in duplicate and the other part delivered to B was the same excepting the word “bark” was in place of “land.” The court looked at both parts of the contract and the whole of them, and from them adjudged that “land” was not meant to be conveyed, thereby rejecting the word “land” as repugnant to the intent as learned from the whole taken together, and making it mean “ bark!”

In Bache v. Proctor, 2 Doug. 383, the condition of the bond was that if A should render a fair, just and perfect account of all sums received, “ the bond should be void.” A rendered a just account but did not pay over the sums received. Lord Mansfield said that the fair construction of the condition was that A should pay. Justice Bulles likened the case to one in the common pleas where the condition of a bond was that it should be void, if the obligor did not pay, and the court held that the palpable mistake of a word should not defeat the true intention of the parties. Here he said it never could be meant that so large a penalty should be taken merely to enforce the making out a paper of items and figures.

In Mills v. Wright, 1 Freeman, 247, the bond was conditioned “if he do not pay the money, the bond should be void.” The court said that the condition was absurd and void, but the bond was good.

In 1 Saunders, 66, note b, it is said that the principle has been extended to promissory notes and a note containing the words “ I promise not to pay ” was held to be a valid promissory note (Bayley on Bills, 4 Ed. p. 6). Simpson v. Vaughan, 2 Atk. 32, contains a reference to a case where the note was for ‘‘ £20 borrowed and received, which I promise never to pay.” The latter clause was modified by the promise implied from the first clause. In Vernon v. Alsop, (1 Leo. 77, T. Ray, 68, 1 Sid. 105, 1 Kel. 356, 415, 451), there was a bond, with the condition to pay £7 by two shillings a week, until the £7 were paid, and if he failed of the payment of the 2 shillings at any of the days, whereon it ought to be paid, the obligation to be void else to remain in full force. The condition was rejected and there was a recovery upon the bond, after a plea that the defendant had failed to pay, &c.

In Furgerson v. Harwood, 7 Cranch, 413, the declaration set out a contract that the said Walter delivered to the said Enos three hogsheads of tobacco, “he the said Enos to be allowed per cent, therefor, the highest six months credit price.” The contract produced in evidence did not have the words “he the said Enos,” and Judge Stoet considered whether the contract would have been materially changed if those words had been in. He said that it was very clear that the word “Enos” was by a mere slip inserted instead of “Walter.” It is repugnant to the sense and meaning of the contract that the creditor who received the tobacco at a stipulated price in part payment of his debt, should allow to himself that price. From the nature of the transaction the debtor must be entitled to the allowance. If the same words had been introduced into the written contract itself, they must have been rejected as nonsensical or repugnant, or have had imposed upon them a sense exactly the same as if the words had been “the said Walter.” Burr v. Broadway Ins. Co., 16 N. Y. 268, sustains the principles of these cases.

It has been hardly necessary to cite these cases, except to show that there was no need of resorting to equity, to reform the defendant’s agreement for mistake, but that, where the mistake appears from the instrument itself, the law will enforce the obligation according to its true legal construction.

There can be no doubt, that the rest of the deed’ shows that the amount of the mortgage was part of' the consideration, and from that it follows, that the mortgage, as between the parties to the conveyance,' was - to be paid by the defendant, the grantee.

I am therefore of opinion that the complaint should not have been dismissed, inasmuch as the plaintiff had made a prima facie cause of action, at law, even if. there was no case for a reformation of the agreement,. in equity, but that the court should have proceeded to judgment in favor of plaintiff, for the sum he had been compelled to pay on the mortgage, with, interest, the defendant not having demanded a trial by jury, or raised any objection on that account.

The judgment appealed from should be reversed,, with costs to appellant to abide the event.

Sanford, J., concurred.  