
    Cramer vs. Benton.
    The provision of the Code allowing a defendant to set forth as many defenses and counter-claims as he may have, whether they be such as were formerly denominated legal or equitable, or both, seems to have been construed to embrace equitable causes of action affecting the equitable right of the plaintiff to enforce his legal cause of action; and probably such was the intention of the provision. Ter Talcott, J.
    In this enlarged sense, an equitable defense or counter-claim to a legal cause of action can mean nothing less than such a state of facts and parties as would induce a court of equity, in the exercise of its general jurisdiction, to interfere and restrain the prosecution of the action at law.
    To constitute a defense to an action of ejectment on the ground that the language and legal effect of a deed differs essentially from the intent of the parties, a case must be presented which would induce a court of equity to interpose and reform the defective instrument; not that it is absolutely necessary, in such a case, that a judgment reforming the instrument should be pronounced, if the defendant is content to waive, or does not demand, such full relief. For the judgment that he recovers in the action is giving him the full effect, so far as the title to the premises in controversy is concerned, of a reformation of the deed.
    But the court, before rendering such a judgment, should have before it the same facts and parties as would enable it to pronounce a decree for reformation.
    Where a deed was executed in 1846, more than twenty years before the commencement of an action of ejectment against the grantor, and in that action the defendant, for the first time, in any action or judicial proceeding, asserted an equitable claim to have such deed reformed, and its legal effect varied, on the ground of mistake; it was held that such claim was barred by the statute of limitations.
    The right to demand relief, in such a case, is barred by the statute at the expiration of ten years from the time when the cause of action accrued; and the legislature, by permitting equitable defenses and counter-claims to be set up in defense to actions at law, did not intend to abrogate the statute of limitations, as to such cases.
    It seems the same policy which prohibits the commencement of an action upon such a claim after the time specified in the statute, is equally applicable to the use of it as a defense, afterwards.
    A court of equity only gives relief in cases where all the parties whose rights are to be affected, or who have a direct interest in the question to be determined, are before it.
    In an action of ejectment, where the defendant sets up as an equitable defense a mistake in a deed executed by him, under which the plaintiff claims, a court of equity would not attempt to make a decree altering the legal effect of such deed, unless the other parties to that conveyance, as well as subsequent purchasers for value, who have conveyed with warranty, were before it. When a defendant sets up and seeks an adjudication in his favor, upon an equitable defense or counter-claim, he is pro hac vice, in a court of equity, and must rely upon its principles, to maintain his claims,
    A grantor in a deed may hold adversely to his grantee.
    ACTION of ejectment. On the 20th day of November, 1846, the defendant John W. Benton, and Lewis J. Benton, his brother, who were heirs at law of Roger Benton, the former owner of a certain farm situate in the town of Arcadia, in the county of Wayne, entered into a mutual partition and division of said farm, between them, Lewis J. taking what was termed the mill property, and the defendant, John W., taking that portion of the premises called the farm. The division line being a line run and surveyed out under their direction, and fixed by monuments, on the 22d of October, 1846. The defendant, John W. Benton, conveyed to his brother, Lewis J., by deed in writing duly acknowledged, his interest in the lands mentioned and described in the first count in the plaintiff’s complaint, together with other lands and premises. The said Lewis J., on the same day, by a deed in writing duly acknowledged, conveyed to the defendant all his interest in the remainder of said farm, which said premises are bounded upon the one side by the division line so surveyed as aforesaid. . Thereafter, and on the 1st day of November, 1847, Lewis J. Benton, by a deed in writing duly acknowledged, conveyed the premises mentioned and described in the first count in the plaintiíf’s complaint, together with other lands, to one Austin R. Howland. On the 13th day of April, 1850, the said How-' land conveyed the same lands and premises to one Abel T. Blackmar. On the 10th day of March, 1861, said Blackmar and his wife, by deed in writing duly acknowledged, conveyed the same lands and premises to this plaintiff. The descriptions given of said premises 'in the deeds from the defendant to Lewis J. Benton, and from the latter to the defendant, are the same as the field notes of fhe surveyor who surveyed and run out said division line. The defendant has remained in possession of that portion of the premises conveyed by him to Lewis J. Benton, which' are upon the boundary of the mill-pond next his lands, and described in the first count in the plaintiff’s complaint, until the present time. The plaintiff did not seek to recover, in this action, upon the second and third .counts contained in the complaint. The action was commenced on the 29th of June, 1869.
    The defendant, by his answer, claims to hold the premises described in' the complaint, adversely to the plaintiff. And, also, sets up the equitable defense of a mistake in the original survey of said' division or partition line, from which survey the defendant took the description for his deed.
    On the trial, at the Wayne circuit, in April 1860, when the plaintiff rested, the defendant proposed and offered to prove the several defenses set up in the answer. The counsel for the plaintiff moved for judgment, and that the defense offered be excluded, upon the ground that it appeared by the opening by the defendant’s counsel that there was no defense, and that the whole theory of this defense failed:
    1st. That the defendant, being the original grantor, could not hold adversely, as against his own deed.
    2d. That as against the plaintiff, who was a bona fide purchaser, for a valuable consideration; without notice, the equitable defense of a mistake made by the defendant in his deed, was not available, even' admitting it as once existing between the defendant and his brother, as his im- ’ mediate grantee, and that the proper parties were not before the court to determine that question.
    The court held that there was no defense of adverse possession; but that the defendant might give evidence of the equitable defense set up in his answer, and thereupon denied the motion. To which ruling and decision, allowing the defendant to give evidence of said equitable defense, as against the plaintiff, the plaintiff’s counsel excepted.
    The jury rendered a verdict in favor of the defendant; and the court ordered the exceptions to be heard, in the first instance, at the general term.
    
      E. G. Lapham, for the plaintiff.
    I. The learned justice erred in holding that the defendant might prove his defense of a mistake in the deed executed by him, for. the reason stated in the objection made to such defense. The case is not open to such defense against the plaintiff, who is a purchaser for value. The defendant knew of the alleged mistake long before the plaintiff made his purchase, and ought not, upon settled principles, to be allowed to set it up against the plaintiff The act of leaving this mistake uncorrected until after the plaintiff purchased, is the same, in effect, as though the defendant, with full knowledge of the mistake, had united in the deed to thé plaintiff. - The plaintiff' has purchased and paid for the land described in the defendant’s deed, and the defendant cannot be permitted to reduce the quantity of land, or to take away from the plaintiff a portion of what he has purchased, and for "which he has paid; and that, too, without refunding, or offering to refund, the párchase price. It was the defendant’s duty, on discovering the mistake, to act promptly, and have it corrected. He could not lie by and allow the land to be conveyed to innocent purchasers, and then assert the mistake, to their prejudice. To allow the defendant to show the mistake here, is to set it up collaterally, and without the proper parties before the court. This cannot be done. (Pattison v. Hull, 9 Cowen, 747.) The principle is, that “he who is silent when conscience requires him to speak, shall he debarred from speaking when conscience requires him to be silent.” (44 Barb. 228.) As against a bona fide purchaser, a court of equity will not interfere on the ground of accident, (Story’s Equity, § 108;) or on the ground of mistake, (Id. 165;) or on the ground of fraud as to creditors. (Id. 381, 409, 434, 436, 631. Sugden on Vend, and Purch. 119, 479, 1st Am. ed.) If it shall he claimed that the possession of the defendant constituted any notice to the plaintiff, to defeat his right as a purchaser, we answer, 1st. The court decided that his possession was not adverse, and such is the rule of law. 2d. When the plaintiff' called on him, he did not dispute the title, but said he should fence it up; that he knew of the difficulty, and had, in his deeds, avoided it. This the defendant did not deny. 3d. A possession contrary to the description in a deep must be adverse, so as to bar an ejectment, to authorize parol evidence of the intention of the parties. (Emerick v. Kohler, 29 Barb. 165. Clark v. Baird, 5 Selden, 183, 304. Hubbell v. McCulloch, 47 Barb. 287.)
    II. The court erred in admitting the evidence of the,defendant and his brother, to prove by parol, the mistake; and the exceptions to the ruling were well taken. The rule of evidence on this subject has been held differently at different periods, in this State, and also in other States and in England. (Truscott v.Davis, 4 Barb. 495. 1 Phil. Ev. 119 and rióte 58, last ed. 1 Greenl. Ev. §§ 383, 385.) As against a purchaser for value, it is submitted a grantor cannot be allowed to give evidence to impeach his deed. It was held that parol evidence of this character was not admissible, as early as Jackson ex dem. Putnam v. Bowen, (1 Caines, 358.)
    III. The court erred in refusing to direct a verdict for the plaintiff. Taking the case of the defendant, as it is proven, he failed to establish a defense to this action, for the reason that it proves itself to be untrue. 1. It is claimed by the defense, that all the courses and distances in the deed are correct, except the one course and distance of two chains and nine links, which should be left out; that when that is left out, the line will run around the bank of the pond at high water mark, according to the courses and distances given in the deed, and will exclude the land claimed by the plaintiff. 2. How the defendant testifies that “We never intended to alter the other lines. He (meaning Mr. Gillespie, the surveyor,) had no directions to alter the other lines, so that all the other courses and distances must be strictly followed out.” Lewis Peck, a witness sworn on the part of the defendant, and who surveyed these premises for the defendant, testifies, that in running the second course and distance, from the beginning point, he run north eighty-six and three-quarters degrees, west five chains and twelve links. That course and distance, as given in the field notes, and in the deeds, is north, eighty-eight degrees west, five chains and twelve links. The witness, Peck,- testifies that had he run north, eighty-eight degrees west, .five chains and twelve links, he could not have got around the pond at all. So that it will be seen at once, when the course and distance of two chains and nine links is left out, and they undertake to run around the pond by the remaining courses and distances, they cannot get around the pond without varying some of the other courses and distances, which they are not warranted in doing. We therefore say that the theory of the defense is inconsistent with the proof, and must fail; and that the court erred in not directing a verdict in favor of the plaintiff, under his request.
    IV. The court erred in submitting to the jury the ques- • tion as to whether there was an actual and practical line of partition between the defendant and his brother Lewis J., which differs from the description given in the plaintiff's deed. The verdict should be set aside, and a new trial granted.
    
      
      S. K. Williams, for the defendant.
    I. The twenty years and more, actual occupancy by the defendant of the premises in question, under an actual partition and claim of title, is a defense on the ground of adverse possession, under the statute of limitations. (Code, § 78. Jackson v. Long, 7 Wend. 170. Poor v. Horton, 15 Barb. 485. Hoyt v. Garter, 16 id. 212. Clark v. Baird, 5 Seld. 183.)
    II. The deed to the plaintiff, as against the defendant, is void under the statute against champerty, as to the land he held when the deed was given. (3 R. S. 972, § 6, 5th ed. 21 Wend. 99, 100. 9 id. 516. Jackson v. Hemont, 9 John. 55. Jackson v. Oltz, 8 Wend. 440.) Every deed of lands is absolutely void, if the lands are in possession of a person claiming adverse title. (3 R. S. 30, § 167, 5th ed. 2 id. 739, § 147, 2d ed. Cole v. Ervine, 6 Hill, 634.)
    III. The manifest mistake in the partition between the defendant and his brother, constitutes a good equitable title in the defendant, to the land in dispute; though the deed from his brother failed to give him the legal title. 1. This equitable title is available as a defense, in this action, without asking for the affirmative relief of reforming the deeds. 2. That affirmative relief could not be had in this suit, because all the-requisite parties are not before the court; a cross suit might have been commenced bringing in all the parties, and staying the proceedings in this suit until that could be brought to trial; but that seemed wholly unnecessary. 3. The circumstances, which would maintain a suit to reform the deed, set up as a mere defense to the ejectment in this action, will be available for that purpose between these parties. (Dobson v. Pearce, 2 Kern. 165, 166, 168. Crary v. Goodman, Id. 266. Phillips v. Gorham, 17 N. Y. 270. N. Y. Ice Co. v. N. W. Ins. Co., 23 id. 360.) 4. This equitable defense, coupled with a possession of over twenty years under the same, must be sufficient to protect the defendant against the claim of the plaintiff' in this action. (Jackson v. Long, 7 Wend. 170, and cases cited under first and second points.)
    
    IV. The above points are sufficient answer to the exception to the judge’s admitting proof of the equitable defense set up in the answer; also to the exception to the judge’s refusal to direct a verdict in favor of the plaintiff. He would have been justified, upon the undisputed facts of the case, in directing a verdict for the defendant on the grounds stated. 1. The exception to the admission of Lewis J. Benton as a witness, is answered by the Code, which allows all interested parties to be witnesses; besides, he was not called to impeach his own deed, but only to explain 'a mistake in it. 2. An exception was taken to the decision of the court allowing proof of the agreement for partition. If this had been excluded, the court would have excluded the whole defense; besides, no ground of objection to the question was stated ; which renders it unavailable. on review. (Fountain v. Pettee, 38 N. Y. 184; S. C., 6 Trans. App. 241.) Ho objection is made to the question which brought out the evidence. 3. As to the several objections to the questions where no ground is stated, the plaintiff cannot avail himself of them on a motion for a new trial. (See Fountain v. Pettee, supra, and cases there cited.) Besides, the several objections to -the questions are trivial and frivolous. 5. The general exception to the charge of the court, at the end of it, cannot be sustained. (Cronk v. Canfield, 31 Barb. 171. Wilson v. N. Y. Central R. R. Co., 2 Trans. App. 398. 38 N. Y. 240. Id. 263. 2 Trans. App. 298. 2 Seld. 233. 1 Kern. 416. 5 Denio, 218.)
   By the Court, Talcott, J.

This is an action of ejectment. The premises in question were quitclaimed by the defendant to Lewis J. Benton, in Hovember 1846. Lewis J. conveyed to Austin B. Howland, in Hovember 1847. Howland conveyed to Abel T. Blackmar, in April 1850, and Blackmar to the plaintiff, in March 1861. Blackmar’s deed contains the usual covenant for quiet enjoyment and of general warranty. Whether the intermediate deeds contain such, or- any, covenants does not appear. The suit was commenced in July 1869. The deed of the defendant to Lewis J. Benton was one of the deeds whereby a partition was effected between the defendant and Lewis J., of certain premises which had descended to them as tenants in common. The defendant set up in his answer, and upon the trial, that by a mutual mistake of the parties to his conveyance, it was made by its language to embrace the premises in controversy, without the knowledge and against the intention of both parties. That such mistake existed, the evidence tended strongly to show, and it also tended to show that the premises so included by mistake had been in the occupation of the defendant, under color of title, ever since the execution of the conveyance in which the ■ mistake occurred; and had the case been put wholly upon the ground of a practical location and adverse possession for a period of more than twenty years, a verdict, sustaining such possession might have been satisfactory.

The alleged mistake would probably be sufficient ■ color of title. The counsel for the plaintiff is in error in supposing that a grantor cannot hold adversely to his grantee. (Jackson v. Stiles, 1 Wend. 103.) The court at nisi prius, however, ruled that the defendant might recover on the mere ground that there was a mistake in the deed; that it was not intended to embrace the premises in controversy ; thus giving to the defendant the effect of a reformation of his deed in equity, on the ground that the facts referred to constituted an equitable defense. Though the general exception to the charge might not have been sufficient to raise the question, yet we think the point was fairly and fully presented on the motion to exclude the evidence, on the opening of the counsel -for the defendant, and in the ruling thereon and the exception. Indeed, at that stage of the case, the court distinctly declared that there was no defense of adverse possession, and the trial ■ proceeded for the mere purpose of establishing what was called the equitable defense.

There is difficulty, doubtless, in many instances, in harmonizing the principle of equitable defenses to actions at law, with our modes of trial and practice. The inquiry, however, which first presses upon our attention in this case, is, what constitutes an equitable defense ?

The Code provides that the defendant may set forth as many defences and counter-claims as he may have, whether they be such as have been heretofore denominated legal or equitable, or both. This seems to have been construed to embrace equitable causes of action, affecting the equitable right of the plaintiff to enforce his legal cause of action; and probably such was the intention of the provision referred to. In this enlarged sense, an equitable defense or counter-claim to a legal cause of action, can mean nothing less than such a state of facts and parties as would induce a court of equity, in the exercise of its general jurisdiction, to interfere and restrain the prosecution of the action at law.

Parol evidence is clearly inadmissible, both at law and in equity, for the mere purpose of contradicting or varying the legal effect of a deed. (Stevens v. Cooper, 1 John. Ch. 429.) And it is only in cases where the deed, by fraud or accident, has a different effect from what was intended, that a court of equity interferes to give relief. To constitute a defense to an action of ejectment on the ground that the language and legal effect of the deed differs essentially from the intent of the parties, a case must be presented which would induce a court of equity to interpose and reform the defective instrument; not that it is absolutely necessary, in such a case, that a judgment reforming the instrument should be pronounced, if the defenáant is content to waive, or does riot demand, such full relief. For the judgment that he recovers in the action is giving him the full effect, so far as the title to the premises in controversy is concerned, of a reformation of the deed. It is manifest, however, that the court, before- rendering such a judgment, should have before it the same facts and parties as would enable it to pronounce a decree for reformation.

Now in the case at bar, there was, so far as the case discloses, an insuperable objection to relief in equity against the legal effect of the deed in question. That deed was executed in November, 1846, more than twenty years before the commencement of this action, in which, for the first time, the defendant, in any action or judicial proceeding, presented Ms equitable claim to have his deed reformed and its legal effect varied. The right to demand relief in such a case is barred by statute at the expiration of ten years from the time when the cause of action shall have accrued. There is no reason to suppose that the legislature intended, by permitting equitable defenses and counter-claims to be set up in defense to actions at law, to abrogate the statute of limitations as to such cases. The same policy which prohibits the commencement of - an action upon such a claim would seem to be equally applicable to the use of it as a defense.

The plaintiff claims* title under a deed with warranty from Blackmar. It is essential to the security of the plain tiff that Blackmar should be a party to this action, so as to be bound by any judgment which is to limit and impair the operation of his deed, and to declare that the plaintiff' did not by that deed acquire title to a portion of the land purporting to be conveyed by it. A court of equity only gives relief in cases where all the parties whose rights are to be affected, or who have a direct interest in the question to be determined, are before it; and doubtless in such a case as the present, a court of equity would not attempt to make a decree altering the legal effect of the original conveyance by the defendant, except the other parties to that conveyance, as well as the subsequent purchasers for value, who have conveyed with warranty, were before it.

Construing the expressions of the Code which allow equitable defenses or counter-claims to actions at law in their most enlarged sense, we think they must at least be confined to those cases in which a court of equity, if its jurisdiction were invoked by action, would restrain or limit the suit at law, and grant equitable relief against it. If we go beyond this, we are setting up, not an equitable defense, but some hybrid which has no name, and is no defense either at law or in equity. It is true that in Dobson v. Pearce, (2 Kern. 165,) a new trial was ordered in a case where the defendant set up and offered to prove a mistake in his deed, though his grantee was not a party to the suit; but the question of proper parties was not discussed or alluded to. The refusal to receive the evidence had been placed upon the sole ground that no equitable defense was admissible in an action of ejectment, and the prevailing opinion in the Court of Appeals expressly disclaims any attempt to decide whether the defendant “ did or did not make out, by his offers, such an equitable defense, because if the offer was defective, under the distinct ruling of the court, no alteration of its terms or substance could have availed him.” And in a similar case, (Phillips v. Gorham, 17 N. Y. 270,) the Court of Appeals said if there was any defect of parties, or if the defendant was entitled to any restitution, he should have presented his claim at the trial, and it would have been, as we must presume, properly disposed of. In this case the very delicate and carefully guarded jurisdiction of a court of equity to reform a deed seems to have been entirely committed for its exercise to the jury. But whether such a disposition of it was proper, does not directly arise, as we are of opinion that the defendant was not entitled in the case to the judgment of a court of equity in his favor; and we think that when a defendant sets up and seeks an adjudication in his favor, upon an equitable defense or counter-claim, he is, pro Tiae vice, in a court of equity, and must rely upon its principles to maintain his claims.

[Fourth Department, General Term, at Buffalo,

June 5, 1871.

A new trial should be granted, with costs to abide the event.

Mullin, P. J., and Johnson and Talcott, Justices.]  