
    Sarah E. Mastin, Resp’t, v. Irving H. Mastin et al., App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed June 25, 1888.)
    
    Deed—Reformation of—When ordered.
    On the trial of an action to have a deed reformed by having the plaintiff’s name inserted therein as one of the grantees, it appeared that the plaintiff and her husband purchased the land described in the complaint, and that the conveyance was made to her husband alone without her knowledge or consent, and that by mistake the name of the plaintiff was not inserted in the deed, although it was the intention of the grantee and the plaintiff to have it so inserted therein, she being one of the purchasers of the property and having paid more than one-half of the consideration named in the said conveyance. That the plaintiff and her husband entered into the possession of the premises about the time of the execution of the ■deed, and continued to occupy the same together until the death of the husband, and since that time the plaintiff has been, and still is, in the ex elusive possession of said premises, to the full knowledge of all the defend •-ants in this action- Held, that the deed should be reformed by inserting the name of plaintiff therein as one of the grantees, and that the deed should have the same force and effect as if her name had been inserted therein at the time of the execution and delivery thereof.
    Appeal from a judgment in favor of the plaintiff, entered in the clerk’s office of the county of Dutchess, on a decision rendered at the Dutchess county special term.
    
      Hackett & Williams, for resp’t; Frank L. Akerley, for .app’lts ; Ransom Baker, for guardian ad litem.
    
   Dykman, J.

This is an equitable action brought for the reformation of a deed made by Ely Mastin to James E. Mastin in June, 1869.

The plaintiff is the widow of James E. Mastin, who died intestate on the 5th day of May, 1879. It was the claim of the plaintiff that her name should have been inserted in the deed as a co-grantee with her husband, and that her name was omitted from the conveyance of the property by mistake, and that she paid more than one-half of the purchase-money of the property.

The trial judge found as a fact that the plaintiff and her husband purchased the land described in the complaint, and. that the conveyance was made to her husband alone without her knowledge or consent, and that by mistake the-name of the plaintiff was not inserted in the deed, although it was the intention of the grantee, James E. Mastin, and the plaintiff to have it so inserted therein, she being one of the purchasers of the property, and having paid more than one-half of the consideration named in the said conveyance.. That the plaintiff and her husband entered into the possession of the premises about the time of the execution of the-deed, and continued to occupy the same together until the-death of James E. Mastin, in May 1879, and since that time-the plaintiff has been and still is in the exclusive possession of the- said premises to the full knowledge of all the defendants in this action.

That James E. Mastin, husband of the plaintiff left him surviving, his widow and the defendants, Irving H. Mastin and Stephen Mastin, his only children and heirs at law;; that in November, 1887, Irving H. Mastin executed and delivered to Frank L. Ackerly, one of the defendants in this action a mortgage upon said premises for the sum of $100, and as a conclusion of law the trial judge decided in favor of the reformation of the deed by the insertion therein as one of the grantees the name of the plaintiff, Sarah E. Mastin, and that the deed should have the same force and effect as if her name had been inserted therein at the time of the execution and delivery thereof.

That upon the death of said James E. Mastin, the husband of the plaintiff, she as the survivor of her husband,, became the sole owner of the property and has been since then, and now is the absolute owner thereof in fee simple. That the defendants, Stephen Mastin, Irving H. Mastin, and Frank L. Ackerly, have no right or title or interest in the said property or any lien thereon by virtue of the said mortgage or otherwise.

Judgment was ordered in favor of the plaintiff accordingly, with costs, which has been entered, and from which the defendants appeal. The statute of limitation was set up by the answer of the defendant Ackerly, but it is not available as a defense for the reason that the action was commenced in time.

Our conclusion is, that the judgment appealed from is eminently just and equitable, and should be affirmed, with, costs.

Pratt, J., concurs; Barnard, P. J., not sitting.  