
    Robert W. De Forest, App’lt, v. Samuel A. Walters et al., Resp’ts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 14, 1894.)
    
    1. Beed—Mistake—Void.
    Where the president of a hoard of trustees of a town included in his deed, either by mistake or in excess-of his authority, land not purchased by the grantee, it is void as to the addition.
    3. Same—Limitation .
    In such case, where the grantee takes possession only of the parcel intended to be sold, and the town remains in possession of the residue, the statute of limitations does not run in favor of the grantee.
    Appeal from a judgment in favor of defendants.
    ■ Thomas Young, for app’lt; Ni 8 Ackerly ( Wilmot M. '8mith,' of counsel), for resp’ts.
   Dykmah, J.

This is an action of ejectment brought against the defendant Samuel A. Walters to recover the possession of a piece of land under the waters of Gold Spring harbor, in the town of Huntington, Suffolk county. The defendant Walters has possession of the premises by virtue of a written lease to him- executed by the board of trustees of the town of Huntington, dated October 2. 1892. ■ The plaintiff bases his title upon a deed executed by the board of trustees to Henry G. De Forest, dated November 19, Í870. The board of trustees, by their answer, interposed three defenses, as follows: First. That Elias Bay lis, president of the board ■ of trustees, by whom the deed was executed to Dé Forest, had no authority to ■ execute a conveyance of. any part of the land described in the complaint in this action. Second. That the hoard of trustees, at about the date of the deed, sold at pub-' lie auction to the.,plaintiff, De Forest, a tract of land under water in. Gold Spring harbor, the boundaries .of which were distinctly pointed out on . the day of ' sale; ■ that the said deed was intended to convey the ■ land so :sold, but by mutual mistake, was so worded-as' to make if appear, that it embraced other lands, including the lands described in the coin-, plaint. Third. That such description in that deed was made by mistake on the part of said Baylis, and, By fraud on the'part of the plaintiff,' sO, as .to maleé it appear to embrace lands :not sold, and--’ apt intended 'to be sold or conveyed, to the plaintiff., -Thebase" was tried at the Suffolk county circuit, before a jury, to which the question of the authority'of the president of the board of trustees to execute the deed was submitted, but the other questions were reserved for decision by the court. The jury found a verdict for the plaintiff on the question submitted. But the court subsequently filed' a decision setting aside the verdict of the jury, as against evidence, and finding that the board of trustees sold to the plaintiff a piece of land under water, in Cold Spring harbor, which did not include the premises in question; that the president of the board, Elias Baylis, and the plaintiff, both directed a lawyer by the name of Charles R. Street to draw a deed of the premises sold, and that such deed was drawn, executed, and delivered, and. accepted, but by mutual mistake the description embraced lands not so sold and purchased, and not intended to be, and that the description embraced the lands described in the complaint, and a large tract in addition thereto; that the plaintiff took possession of the lands actually sold, and his successors remained in possession thereof from that time; that the board of trustees of the town of Huntington remained in possession of the other lands embraced in such erroneous description, and were in possession thereof, either directly or by their lessees, at the time of the commencement of this action. Judgment was entered upon that decision dismissing the complaint of the plaintiff, and reforming the deed, so as to embrace only the land actually sold by the board of trustees to the plaintiff. From that judgment the plaintiff has appealed to this court. ' °

Our examination of the case leads us to the conclusion that the submission of the question to the jury was erroneous, and that the verdict was properly set aside, and that the testimony fully justifies the finding of the judge. If the boundaries in the deed to the plaintiff under which he claims title included the premises he claims, then it is void, because there is no authority for the execution of such a- conveyance. The testimony of Street, the lawyer who drew the conveyance, shows that both parties knew precisely what was sold, and. that the plaintiff knew that the president had' no authority to convey more than was sold. Hence, a verdict that the president had authority to convey more than was sold is directly against the evidence, and could not be permitted to stand, That portion of the deed which assumes to convey the premises in this case being void for want of power- in the officer of the corporation to execute it, the judgment, for that reason, should be affirmed. The property intended to be conveyed was plainly defined, and nothing more can pass by the sale and conveyance. The evidence of mistake is overwhelming, and justice is plainly worked out by this judgment.

In respect to the statute of limitations, it is to be said that both parties assumed, up to the time of the commencement of this action, that the deed to the plaintiff embraced only the land sold at auction. The plaintiff took possession only of the lands he bought, and the town remained in possession of the remaining land, as if the deed was drawn precisely in accordance with the facts; and reformation of the deed gives the town no more than it already has, and deprives the plaintiff of nothing he has ever had. So that, in substance and in effect, the relief asked for, and granted, is nothing but the removal of a cloud upon the title of the town. If the plaintiff, after he had received his deed, had entered into possession of all the premises which he now claims to be embraced therein from the town, claiming a title thereto by virtue of such deed, an action on the part of the town to reform the deed so as to embrace only the land sold at auction would be barred by the statute of limitations; but now the case is entirely different, as we have already stated, for the reason that the plaintiff did not take possession of the land which he now claims. Schoener v. Lissauer, 107 N. Y., 111; 11 St. Rep. 368; Miner v. Beekman, 50 N. Y., 337.

The exceptions disclose no error, and the appeal is destitute of merit.

The judgment should be affirmed, with costs. All concur.  