
    Jane V. Chaflin, Plaintiff, v. George F. Gantz et al., Defendants.
    (Supreme Court, New York Trial Term,
    June, 1896.)
    1. Ejectment—■ Defense — Equitable title.
    In an action of ejectment founded upon a legal title in the plaintiff, the defendant may allege and prove that he is equitably the owner of the premises and entitled to a conveyance thereof, or that the land was intended to be conveyed to 'him, but by á mistake in the description was not included.
    3. Same — Mistake in deed. .
    Plaintiff and defendant purchased real estate at an auction sale thereof in accordance with lot numbers on the auctioneer’s map, but the deeds described the premises in accordance with a map on file in the register’s office, on which the numbers of the lots respectively were transposed. Held, that the parties having taken possession of the premises which each had purchased, the plaintiff could not maintain an action of ejectment founded upon such erroneous description.
    3. Same — Limitation.
    Where a defendant is in possession claiming under a deed, the statute of limitations does not begin to run against the right to have the deed .reformed in equity, if at all, until such defendant is chargeable with notice of the assertion of an adverse claim.
    Action of ejectment to recover the possession of real property.
    
      J. 'A. Beall and M. L. Townsend, for plaintiff.
    Wm. Hildreth. Field, for defendant Gantz.
   McAdam, j.

At an auction, sale of lots belonging to the estate of Charles M. Connolly, deceased, had April 9, 1878, the plaintiff, through one Camp, an agent, purchased six vacant lots, shown upon the auctioneer’s map as Eos. 32, 33, 34, 51, 52 and 53, and the defendant Gantz purchased six lots shown on said map- asEos. 28, 29, 30, 55, 56 and 57, with the improvement exhibited thereon as the Century House. Deeds were thereafter executed in which the-same lot numbers were used, but the description clause referred to them as known by those numbers upon a certain map filed in.the register’s office as map Eo, 814, twenty days subsequent to the sale. ■ ■ This last-mentioned inap' gave the six-lots purchased by the plaintiff the numbers which appeared upon the auctioneer’s map as having been purchased by Gantz and. vice versa. The defendant Gantz' took possession of the six lots he pur-' chased according to the auctioneer’s map, and thereafter rented the property to the codefendant, Walter E. White, who as occupant was joined as a party. The discrepancy was not discovered till about 1887, and the plaintiff shortly afterward brought this action to recover the property thus possessed by Gantz, because her deed, according to the lot numbers, which were taken from' the map filed in the. register’s office, purported to convey his lots. That Gantz did as matter of fact purchase the Century House and the six lots upon which it'stands, and of which he took.possession, is evident from everything that appears in the case; and that the-plaintiff never asserted any title or made or- supposed she had any claim thereto until the .error in description was discovered is equally clear. The action, is an outgrowth of that' error, and is in effect founded upon it. The plaintiff'paid $155 éach for three lots, and $165 each for the other three; while Gantz, at the same sale, paid $390 a lot for his property. This indicates that the more valuable property was purchased by th.e latter. His deed conveys the land with the buildings thereon erected,” while the deed to the plaintiff conveys six lots, and is silent as to buildings. The fact is significant because the grantors are the same, and both deeds were delivered to carry out the auction sale. At the sale the Century House-and the six lots -on which it stands were sold as one piece, while the six lots purchased by the plaintiff were sold separately. These circumstances all confirm the fact that there was a mutual mistake in referring to the map on file, or in not conforming the numbers of the lots so as to properly identify them as they were sold to the purchasers at the auction-room. For a party to seek to take advantage of a concurrent mistake is in, itself a fraud which equity will correct, and if all the necessary parties were before the court, it would seem a proper casé for reforming the deed (15 Am. & Eng. Ency. of Law, 626; Pitcher v. Hennessey, 48 N. Y. 415; 2 Pomeroy’s Eq. Jur., § 853; Story’s Eq., §§ 142, 152; 3 Daniel’s Ch. Pr. [4th ed.], 1970, note); but this cannot be done with only the two grantees as parties to the record. Mitf. & Tyler’s Eq. Pr. (ed. of 1876), p. 256. The defendant G-antz may, however, protect his possession from ejectment by equitable defenses, which include all matters which would have authorized an application to the late Court of Chancery for relief. Dobson v. Pearce, 12 N. Y. 156; Mandeville v. Reynolds, 68 id. 528, 544; Sheehan v. Hamilton, 2 Keyes, 304. Thus, in an action of ejectment founded upon the legal title held by the plaintiff, the defendant may allege and prove that he is equitably the owner of the premises and entitled to a conveyance thereof (Crary v. Goodman, 12 N. Y. 266; Lamont v. Cheshire, 65 N. Y. 30; 42; Thurman v. Anderson, 30 Barb. 621; Dodge v. Wellman, 1 Abb. Ct. App. Dec. 512; Carpenter v. Ottley, 2 Lans. 451); or he . may set up that the land was intended to be conveyed to him, but by a mistake in the description was not included. Hoppough v. Struble, 60 N. Y. 430. The objection urged by the plaintiff that the right to . interpose the equitable defense is barred by the statute of limitations (Code, §§ 388, 397, 415) is untenable. ' Where a defendant is in possession claiming under a deed, the statute of limitations does not begin to run against the right to have the deed reformed in equity until such defendant is chargeable with notice of the assertion of an - adverse claim, even if ever a bar to such relief. Bartlett v. Judd, 21 N. Y. 200. The complaint must be dismissed upon the merits, with costs.

Complaint dismissed, with costs. :  