
    CHARLES F. WILLIS, Appellant, v. JOSHUA C. SANDERS, Respondent.
    
      Decided March 2, 1885.
    
      Reformation of deeds—actions for—parties and evidence in—notice, when not constructive.
    
    An action for the reformation of a deed is not sustainable by one who does not, as matter of fact, connect himself with the arrangement, bargain or contract under which the deed was made ; and the mere fact that one is a grantee of the party to whom the deed was made, does not so connect him.
    When the solution of the question involved depends on inferences, surmises and speculations, rather than direct and positive evidence, and is not free from doubt and uncertainty, equity will withhold relief.
    The extent of the proposed alteration must be clearly defined and ascertained by evidence contemporaneous with or anterior to the deed.
    As against a purchaser for value and without notice, such relief will not be granted.
    Where one obtains a deed in fee from a party who has no record title, and, finding a person in occupation under a tax lease, takes a deed from such person, of whatever rights such person has (although from his standpoint such person had no title), that person in and by such deed attorning to the grantee thereof and hiring from him, the continued occupation of the one so holding under the tax lease is not constructive notice of the claims or rights claimed by the parties under the deed in fee.
    Before Sedgwick, Ch. J., and Truax, J.
    Appeal from a judgment dismissing the complaint on the merits.
    In this case it was sought to reform a deed by substituting the word “west” for “east.” One McCormick on November 1, 1852, conveyed to one Orowley a piece of land, beginning two hundred and fifty feet west of Second avenue, and running fifty feet west, taking back a purchase-money mortgage. Ten days after, and on the 10th day of ¡November, 1852, the following transactions took place : McCormick canceled said mortgage, and conveyed to Crowley a piece of land beginning two hundred and fifty-five feet west of Second avenue, and running fifty feet east, Crowley giving back a mortgage which McCormick assigned; Crowley conveyed to McCormick two lots, beginning two hundred and fifty feet west of Second avenue, and running fifty feet east. (It is in this deed the mistake is alleged to have occurred.) McCormick conveyed to one O’Leary a lot, commencing two hundred and fifty-five feet west of Second avenue, and running twenty-five feet west, and O’Leary gave back a mortgage which McCormick assigned. Plaintiff claims through O’Leary. Defendant claims to be a bona fide purchaser without notice from the heirs of Crowley. Plaintiff claimed that the transactions of November 10, established an agreement between McCormick and Crowley, to the effect that Crowley should re-convey to McCormick the property conveyed by the deed of November 1, and that McCormick should convey to Crowley the east five-feet of that property, and forty-five feet of the land lying; contiguous thereto on the east, and that consequently the word “ east ” was inadvertently and by mutual mistake used instead of “west” in the deed of that date, from Crowley to McCormick, arguing that if this were not so the following results would follow: McCormick would convey to Crowley five feet of land which he already possessed, and Crowley by the deed in question would convey to McCormick five feet more that he (Crowley) possessed, and the mortgage given that day by Crowley to McCormick on the property that day conveyed by the latter to the former, would cover forty-five feet of that same property, which forty-five feet with five additional feet on the west, was on the same day conveyed by the former to the latter ; whereas, if it were so, those results would not follow, but on the contrary by Crowley’s deed of November 10, McCormick would become possessed of the original fifty feet conveyed by him to Crowley, and he would thereby be enabled to convey the easterly five of those fifty feet with forty-five additional feet on it east to Crowley, and Crowley would not convey anything more than he possessed, and the mortgage given by Crowley to McCormick would not be on any part of the land which he on the day of giving it conveyed to McCormick ; and that equity would give such a construction to the transactions as would lead to the latter, rather than such an one as would to the former, result.
    Plaintiff claimed that defendant at the time of taking his deed had constructive notice of his rights and took subject to them ; and founded this claim in the following circumstances : at the time plaintiff took title one Mary Murphy was in possession, and the agent of the plaintiff in the purchase testified :
    
      “ Mary Murphy occupied and claimed the property, and therefore, I thought it prudent to get a deed from her ; from my standpoint she had no title ; I had the deed of the property, from the owners, Browns, before that; the deed I introduced here in evidence ; Mary Murphy was in occupancy at that time, holding under a tax lease; the deed from her was for any claim she had under it, and a surrender of occupation, and an attornment to the plaintiff as the owner. ”
    The deed from Mary Murphy was read in evidence.
    The cause was tried at special term, before his Honor Judge O’Gorman, without a jury, who delivered the following opinion:
    O’G-orivian, J.—“ The plaintiff in this action claims to have acquired, for a valuable consideration, title to a lot of land on the north side of Seventy-seventh street, in this city, lying between Second avenue and Third avenue, and described as beginning at a point on the north side of Seventy-seventh street, two hundred and fifty-five feet from the northwest corner of Seventy-seventh street and Second avenue, and running thence along said street twenty-five feet west, by a deed dated June 1, 1883, from Delaplaine Brown to him, said Brown claiming title-through various intermediate conveyances from Daniel O’Leary, who acquired his title to said lot by deed, from one Richard 0. McCormick, dated November 10, 1852.
    “ The lot in question was part of a plot, of which said McCormick was then, or had been on the first day of November, 1852, the owner in fee.
    “The defendant Sanders claims to have acquired title for a valuable consideration to the same lot, by deed dated July 31, 1882, from the heirs-at-law of one Cornelius Crowley, to whom the lot was conveyed by deed from said McCormick, dated November 1, 1852, by which deed a plot of land commencing 250 feet west of the northwest line of Second avenue, being fifty feet front on Seventy-seventh street, lying west of the place of beginning, was conveyed to said Crowley, including the lot in question.
    “ The existence of these deeds from said McCormick is conceded by both the plaintiff and the defendant. The plaintiff, however, avers in his complaint, that it was on the tenth day of November, 1852, intended and agreed by and between said McCormick and said Crowley, that the said plot of land last mentioned should be reconveyed by said Crowley to said McCormick, but that by a “clerical error in the description ” thereof in a deed executed and delivered by said Crowley to said McCormick, on the day last mentioned, the said agreement and contract were not carried out, but property other than that agreed on by them was conveyed by said deed.
    “ If this allegation were sustained by proof, the plaintiff might be entitled to equitable relief by way pf reformation of said description or otherwise, so that the said mistake should be rectified, and the actual intention of said McCormick and Crowley should be expressed and carried out. Upon his success in sustaining this allegation by sufficient proof, the plaintiff’s claim of title to the lot in suit depends.
    “ The burden of proving that the agreement and intention of said Crowley and said McCormick were as he avers, rests upon the plaintiff, and if he fails in this, he is entitled to no relief, either legal or equitable, in this action, and his complaint must be dismissed.
    “On said 10th of November, Crowley conveyed to McCormick two lots commencing two hundred and fifty feet west of Second avenue, being fifty feet on Seventy-seventh street, and lying east of the place of beginning. The above averment is made in respect of this deed. Both McCormick and Crowley are long since dead, and no parol testimony is offered to show what was their mutual agreement or intention.
    “No charge is made against Crowley of fraudulent intent in the matter, but it is claimed that by a £ clerical mistake ’ the word £ east ’ was written instead of the word £ west,’ in the deed.
    “The defendant Sanders, claims to have purchased the lot in suit for value, and without notice of the alleged error in said deed or of said alleged agreement and intent.
    “ In order to prove the alleged mutual agreement and intention, that the two lots running west should have been reconveyed to McCormick and not the two lots east, the plaintiff presents the following facts which are in evidence : On execution of the first mentioned deed, dated November 1, 1852, by McCormick to Crowley, of the plot, including the lot in question, the latter gave the former a purchase money mortgage. This mortgage was satisfied of record on November 10, 1852. On said November 10, 1852, McCormick executed a deed to Crowley of two lots described as beginning at a point two hundred and fifty-five feet from said northwest corner of Seventy-seventh street and Second avenue and running thence easterly fifty feet along said street. These were other two lots of the said plot owned by said McCormick. On the same day, November. 10, 1852, Crowley gave to McCormick a mortgage, on said two easterly lots, for $500, and on the same day McCormick assigned said mortgage to one Daniel Fry, in trust for Margaret Hamilton.
    “ This action of McCormick, it may be argued, seems to ba inconsistent with the theory entertained by the defendant Sanders, that Crowley, by his deed of the same date, November 10, being the deed in which it is claimed by the plaintiff that the ‘ clerical mistake ’ occurred, intended to reconvey the same two easterly lots to McCormick ; and seems to be more in accord with the theory of the plaintiff, that the two lots intended to be reconveyed were the two lots on the westerly side which had been conveyed by McCormick to Crowley by deed dated November 1, 1852.
    
      “ The fact that on the same 10th day of November, 1852, McCormick conveyed to Daniel Leary, the lot in dispute in this suit, being described as commencing two hundred and fifty-five feet west of the said northeast corner of Second avenue and Seventy- seventh street, and running thence twenty-five feet west along said street, seems to be consistent with the theory that McCormick regarded himself then as having resumed ownership of said lot by the reconveyance to him of the before-mentioned plot, fifty feet wide, in which said lot was included.
    
      “ It is worthy of notice that the deed of reconveyance from Crowley to McCormick, of November 10, 1852, does not accurately describe the two lots conveyed by McCormick to Crowley on same day, in this, that in the latter deed the two lots are described as beginning at a point two hundred and fifty-five feet from said corner of Second avenue and Seventy- seventh street, and in the former deed, that is to say, the reconveyance from Crowley to McCormick, the lots are described as beginning at a point not two hundred and fifty-five feet, but two hundred and fifty feet from said corner, and running east along Seventy-seventh street fifty feet, which description would extend beyond the lots owned by McCormick on the east, by five feet. It thus appears that the deed of reconveyance is, in its description of the property conveyed, defective in any aspect of the case, and in its present shape would fail to express with perfect accuracy any probable intent of either of the parties, McCormick or Crowley.
    
      “Again, on the sale by McCormick to Daniel Leary, of the lot in dispute, on November 10, Leary gave McCormick a purchase-money mortgage for $250, which mortgage McCormick assigned to Daniel M. Frey, which facts also may he regarded as tending to show that at the date of that mortgage, McCormick regarded himself as the owner of the lot in dispute, and he could not have been owner of it unless it were included in the deed of reconveyance in which, as is alleged, by a “ clerical error,” the lot in dispute was not included.
    “ Again, why did McCormick, on November 10, satisfy a mortgage on the two westerly lots, conveying one of them (being the lot in dispute) to Leary, unless he believed himself entitled as owner of this to convey it to Leary ?
    “ These are the facts relied on in support of the theory that it was McCormick’s intent to re-acquire the ivesterly lots by means of a re-conveyance to him, and to sell one of them (the lot in dispute) to Leary, and to leave the other and easterly lots as they were, conveyed to and vested in Crowley under the deed to him of November 10. But whether they are considerations strong enough, of themselves, to sustain a conclusion on which a court of equity could safely decree that a deed should be reformed,* is a question by no means free from doubt.
    “ What were the motives and purposes of these various conveyances and re-conveyances, 'and especially what were the actual agreement and intent of the parties to the re-conveyance of November 10, 1852, in which the “ clerical error ” is said to have occurred, are questions depending in this case on inferences, surmises and speculations, ■rather than on any direct and positive evidence, and if there be not sufficient proof to guide a court of equity to a satisfactory conclusion as to the real intention of the parties, in compliance with which intention the alleged mistake in the deed could be rectified, the court will not decree that the deed be reformed.
    “ A court of equity will not undertake the responsibility of changing the language of a deed, unless there be no-reason to fear that such change might, instead of better expressing the real intention of the person executing the deed, be the means of misrepresenting and defeating that intent.
    “The deed of reconveyance here, of November 10, 1852, was duly recorded, and must be assumed to have reached the possession of McCormick and to have been read and understood by him.
    “He never took any measure to have it reformed, and until now—thirty-one years after the date of that re-conveyance—no such effort has been made by any one.
    “To reform a deed conveying real estate, after such a lapse of time, unless the proof that it failed to express the real intention of the person executing it was clear and beyond all reasonable doubt, would be to establish a dangerous precedent and tend to unsettle confidence in all title to real estate.
    “What has occurred since the death of McCormick and Crowley, what steps have been taken by the heirs of Crowley, and what claims have been made by them, throw no light on the question of the intent of the parties to the deed of reconveyance at the time of its execution, and it is essential to a decree reforming a deed, that the extent of the proposed alteration be clearly defined and ascertained by evidence contemporaneous with or anterior to the deed (Story’s Eq. Jur. § 164, d).
    “ The defendant Sanders, claims to be, and as far as appears in the case is, a purchaser for value, and without notice of any mistake in the said deed of reconveyance of the easterly lots, or any reason to’believe that it had any application or reference to the westerly lots conveyed to Crowley on November 1, 1852, including the lot in dis-. pute, or that Crowley’s title to the same was in any re-, spect affected by said deed of reconveyance.
    “ The plaintiff in his complaint concedes that as far as recorded deeds constitute a claim of title, the record title is in the defendant Sanders. And the mere occupation of the lot in question by Mrs. Murphy, without claim of title, does not, in my opinion, amount to notice of any adverse possession.
    “ The principles of law as applicable to a question of this kind, are these :
    “ Courts of equity will interfere to reform a deed only between the original parties and their privies' (Story’s JSJq. Jur. § 165). No such relief will be granted as against a purchaser for value and without notice, for he has equal equity to the protection of the court (Id. § 165).
    “The existence of the mistake in the deed, must be made out clearly and by satisfactory evidence, and if the proofs are doubtful and unsatisfactory, and the mistake is not made entirely plain, equity will withhold relief (Id. § 152). The proof must be full, clear and decisive, free from doubt or uncertainty. Such a degree of proof as a jury would act on in the most important affairs of life (Washburn Beal Prop. § 23 a ; Stockbridge Iron Co. v. Hudson Iron Co., 107 Mass. 317; Leavitt v. Palmer, 3 N. Y. 19 ; Nevius v. Dunlap, 33 lb. 676 ; Earniey v. McMullen, "5 Abb. N. C. 246 ; Pitcher v. Hennessy, 48 N. Y. 415 ; Bryce v. Lorillard Pire Insurance Co., 55 lb. 240 ; Maher v. Hibernia Ins. Co., 67 lb. 283).
    “Applying these principles to the case at bar, I am unable to arrive at the conclusion, clear of all reasonable doubt, from any evidence before me, that the intention of both McCormick and Crowley was not expressed in the reconveyance of November 10, 1852, of the easterly lots ; and that the real intention was to convey thereby the plot on the west, containing the lot in dispute ; and under such circumstances,- and as against the claim of a purchaser for value and without notice, this court should not, in my opinion, interfere.
    “The plaintiff’s complaint should therefore be dismissed on the merits, as against all the defendants, but without costs.
    “As to the prayer in answer of defendant Sanders for judgment, for damages, and for possession of the lot in question, that must be denied, without prejudice, however, to any action at law which he may bring to obtain such judgment or relief.
    Judgment having been entered in conformity with the opinion, plaintiff appealed.
    
      William Settle, attorney, and Benjamin A. Willis, of counsel for appellant,
    argued :—I. Sanders becomes, in virtue of the facts, mala fide purchaser, chargeable with notice, and is not at liberty to invoke the equitable principles referred to by the judge in Ms opmion. He took it with notice of all outstanding eqmties. Possession is a badge of ownership. All the proofs making evident the mistake of description m the deed from Crowley to McCormick were on the record. Sanders should have inquired of the Crowleys and also of the plaintiffs, whose lease to Mary Murphy was on record before he purchased. When another than the vendor is in possession of the land, the purchaser has constructive notice of his rights, and takes it subject to them (Pendleton v. Fay, 2 Paige, 202 ; Daniels v. Dawson, 16 Vesey, 249 ; 2 J. J. Marsh. 180; Brice v. Brice, 5 Barb. 553 ; Chesterman v. Gardner, 5 John. Ch. 29 ; Cook v. Travis, 20 N. Y. 402 ; Williamson v. Brown, 15 Ib. 354). Flagg v. Mann (2 Sumner, 554), holds that possession is notice. See also Reed v. Gannon (50 N. Y. 350); Scott v. Gallagher (14 Serg. & Rawl. 333). It follows also by reason of the adverse possession at the date of Sanders’ deed, that the same was absolutely void under the statute (Sands v. Hughes, 53 N. Y. 287), for Sanders, in his said answer, alleges that the premises are withheld from him by Willis, this appellant, and that WiHis holds under a claim of title.
    II. There never was a cause presented where the proof was so conclusive that the deed sought to be reformed, was contrary to -the intent and agreement of the parties, and that the word “east” was, by mutual mistake, used for “west.” The contemporaneous evidence shows this. The subsequent acts are equally strong and convincing.
    Never were more convincing proofs marshaled—none of the presumptions against the defendants were rebutted. Neither Sanders nor the Crowleys gave testimony, and no single word, act or record, antagonizes plaintiff’s theory. Sanders was bound to rebut (Bruce v. Kelly, 39 Super. Ct. 271). The extent to which courts administer relief, in reforming and correcting written instruments will be appreciated by reference to the following authorities : Brown v. Broadway Ins. Co. (16 N. Y. 273), in which the word “northwest” was changed to “southwest,” in policy of insurance; Huss v. Morris, 63 Penn. St. 367 ; Van Duyne v. Van Duyne, 23 Mich. 321 ; Hartford Ave. Co. v. Miller, 41 Conn. 112 ; Quincey v. Baker, 37 Col. 465 ; Johnson v. Tabor, 10 N. Y. 319 ; Hoppingh v. Struble, 60 Ib. 430 ; Foster v. Bell, Clarke Ch. 37. The long established rule is with reference to construction of a description, “that courts are required to adopt such an interpretation thereof, as shall give effect to the intention of the parties, if that is discoverable from legitimate sources of information (Jackson v. Clark, 7 John. 217; Buffalo R. R. Co. v. Stigles, 61 N. Y. 348). Attention is also called to case of Brookman v. Kurzman (94 N. Y. 272). See also Rider v. Powell, 28 N. Y. 311 ; Bartlett v. Judd, 21 Ib. 199; Jackson v. Andrews, 59 Ib. 245 ; Bush v. Hicks, 60 Ib. 303.
    III. The plaintiff is entitled to the relief asked for in his complaint, and the court erred in withholding it, for the reason that the acts, declarations and admissions of Cornelius Crowley, the grantor named in the deed to McCormick, of Thomas Crowley, of Cornelius George Crowley, the immediate grantor of Sanders, both those contemporaneous with the transaction and subsequent, operate as an estoppel in pais, and prevents them dr their privies from calling plaintiff’s title into question. He cannot gainsay the reasonable inference to be drawn from his words and conduct (Herman on Estoppels, 337, 239, 349).
    
      Townsend & Mahan, attorneys for respondent, and J. C. Sanders, respondent in person,
    argued :—I. Notice, to affect a purchaser, must be explicit and positive, equiva ■ lent to a registry, and “ such as will, with all the attending circumstances, affect the party wdth fraud,” if he disregards it. A notice which is to put a party on inquiry, is not sufficient to break in upon the policy and express provisions of the registry act. Nor is a mere suspicion of notice enough ; nor will vague reports and conversations warrant even the inference of notice (Jackson v. Van Valkenburg, 8 Cow. 264; Jackson v. Given, 8 Johns. 140 ; Jackson v. Wood, 12 Ib. 244 ; Jackson v. Elston, 12 Ib. 452). “ The notice, therefore, is never to be presumed, but must be proven, and proven conclusively. A mere suspicion of notice, even though it be a strong suspicion, will not suffice ” (Vest v. Michie, 31 Am. Rep. 722). But in this case the proof disclosed no record notice, no notice outside of the record, no suspicion of notice, and no suspicious circumstance. The defendant comes with clean hands, presenting a deed from the heir of Crowley, 0the record owner in fee ; and not one fact is given that he had, or ought to have had, any suspicion even, but that the title, which was conveyed to him, was, in fact, exactly as it appears of record—the absolute title—nor that there was any fact or circumstance suggesting any doubt upon the perfect validity of that title. Even if defendant’s grantor, Cornelius George Crowley, had notice of such mistake and intention, if there was one, and there is no proof that he had, that fact would in no way affect the title of Sanders, who had no such notice ; for “ where one affected with notice conveys to one without notice, the latter is protected equally as if no notice of error existed ” (Jackson v. Given, 8 Johns. 137 ; Jackson v. Van Valkenbug, 8 Cow. 260 ; Corning v. Murray, 3 Barb. 652 ; Varick v. Briggs, 6 Paige, 323). A deed describing property as beginning six hundred and fifty feet from a certain line, but recorded as beginning only one hundred and fifty feet therefrom, is not constructive notice to a bona fide purchaser who saw only, and was governed by, the record (Ford v. James, 2 Abb. Ct. App. 159 ; 4 Keyes, 300) Or, a mortgage for $3,000, but recorded by mistake as for only' $300, will render a bona fide purchaser chargeable with notice only to the extent of $300 (Beekman v. Frost, 18 Johns. 544). The occupation of the lot by Mary Murphy, without claim of title, as plaintiff’s counsel testifies she had no title, could not amount to notice of title or adverse possession; for possession is constructive notice only of the particular title or claim the possessor has ; and Mary Murphy having none, her occupation could not be notice of any titlé, for it was without title and wrongful. At the most, notice by possession is merely an inference (Cooke v. Travis, 22 Barb. 338).
    II. There is no evidence showing any error or mistake in the deed of Crowley to McCormick, dated November 10, 1852. The deed contains no intrinsic evidence of mistake. Every part is consistent with every other in the description, clearly and explicitly describing other property than that in question, and lying wholly east of it, and which plaintiff shows was conveyed to Crowley the same day.
    III. Allowing that there was error or mistake in the description of the deed from Crowley to McCormick, an action for its correction or reformation could only be maintained between the original parties thereto and their privies with notice thereof, and not against a purchaser in good faith, for he has an equal equity to the protection of the court (Story Eq. Jur. §§ 139, 165). But in' this case, after the lapse of thirty-one years, the plaintiff, holding no immediate relation to either party to the deed, asks for the first time the reformation of this ancient deed, and that it be made to describe property wholly different from that therein described, and that, too, against a bona fide purchaser for value. It is the height of presumption on the part of the plaintiff at this late day, after the lapse of nearly a third of a Century, to question the correctness of this deed, and to deny that the parties thereto, with whom he holds no immediate relation, and all of whom are dead, expressed what they intended therein.
    
      IV. To entitle a party to a decree of a court of equity, reforming a written instrument, he must show by clear, positive and unequivocal evidence, that (1) a mistake was made, and (2) that such mistake was a mutual one, expressing what was contrary to the intention of both parties. It is not enough to show that it was a mistake made by one party alone to the instrument. The court of equity forbids relief whenever the evidence is loose, equivocal or contradictory, or it is open to doubt or opposing presumptions (Story Eq. Jur. §§ 152, 157 ; Kent v. Manchester, 29 Barb. 597; Nevius v. Dunlap, 33 N. Y. 676).
    As remarked by the judge in his opinion, what were the motives and purposes of the various conveyances and reconveyances, by which the plaintiff has endeavored to show a mistake and the intent of the parties thereto, “are questions depending in this case on inferences, surmises and speculations, rather than on any direct and positive evidence.”
    V. When Daniel O’Leary, on the 10th day of November, 1852, received his deed from McCormick, he knew, and had legal notice, that the lot described in his deed had been ten days previously conveyed by McCormick to Thomas Crowley ; and the record of it six days before, constituted such notice. And the plaintiff, when he received his deed from Brown, had like knowledge and notice. Therefore, both deeds were void as against the deeds of the same lot to Crowley and to the defendant, under the registry act.
    VI. The possession of Mary Murphy, and acquired by plaintiff through her quit-claim, was not an adverse possession (Hoyt v. Dillon, 19 Barb. 644; Crary v. Goodman, 22 N. Y. 176 ; Hallas v. Bell, 53 Barb. 248 ; Hasbrouck v. Bunce, 62 N. Y. 482; Jackson v. Frost, 5 Cow. 351; Fish v. Fish, 39 Barb. 513 ; Sayre v. Rathbone, 9 Abb. N. S. 277).
   Per Curiam.

One McCormick, by two deeds, conveyed four lots to one Crowley. Crowley reconveyed to McCormick the two of the lots on the east, which left the title to the westerly lots in Crowley. On the same day, McCormick, conveyed to one O’Leary, one of the westerly lots, and the plaintiff holds through mesne conveyances and proceedings from. O’Leary, and also claims to be in possession of the lot. The defendant claims title from Crowley, through conveyances by his heirs. The plaintiff claims solely in this action that the deed from Crowley to McCormick apparently conveying the easterly lots, should be so reformed, as to make it a conveyance of the westerly lots. The plaintiff cannot show that he has any interest in the conveyance of Crowley to McCormick of the two easterly lots, unless as matter of fact, he connects himself with the arrangement, bargain or contract,- under which the deed was made. There is not a jot of evidence that he is a privy to that arrangement or succeeds to any interest in it. He is not privy to the deed which is asked to be reformed, and would become so only after there was a judgment that the deed should be reformed. He is,-however, not entitled to such a judgment until he first shows that he is privy to the obligations which led to the making of the deed or to the deed.

The judgment should be affirmed on the opinion of Judge O’Gorman, at special term, with costs.  