
    Charles V. Bush et al., Respondents, v. James E. Hicks et al., Appellants.
    (Argued February 26, 1875;
    decided March 23, 1875.)
    A deed maybe reformed, not only where there is a mistake in the omission or insertion of words contrary to the intention of the parties, but also where they, understanding the language used in the description, believe it to correspond with the actual boundaries of the land intended to be conveyed but are mistaken.
    Where one knowing what lands were intended to be conveyed purchases, and, through a similar mistake, receives a conveyance from the grantee containing the same description, and claiming thereunder brings ejectment to recover possession of lands not intended to be conveyed but included by the mistake in the description, he may be made party to an action for the reformation of the deeds, and may be restrained therein from prosecuting his ejectment suit.
    Appeal from judgment of the General Term of the Supreme Court in the fourth judicial department, modifying, and affirming as modified, a judgment in favor of plaintiffs entered upon a decision of the court at Special Term.
    This action was brought to reform certain deeds on the ground of mutual mistake, and for other purposes hereinafter stated.
    The complaint alleged, and the court found, in substance, that, on the l7th July, 1866, plaintiff Charles Y. Bush was the owner of two parcels of land situate in Yates county, being part of lot number thirty-nine. That on that day he contracted to sell the same to defendant James E. Hicks and to George Mattice. That said plaintiff owned, at the same time, another parcel, also part of said lot thirty-nine, adjoining said two parcels on the west. That, for the purpose of performing said contract, said Bush and wife (the plaintiffs herein), executed and delivered a deed. That, by a mutual mistake of facts, on the part of the parties to said deed, the description therein was so drawn as to include and convey not only the said two parcels first mentioned, but also the third parcel, and other portions of lot thirty-nine, neither of which was intended, by either of the parties to said deed, to be conveyed. That such mistake consisted in supposing that the point which was the north-west corner of the first of said two parcels, and the south-west corner of the second was the north-west corner of said lot thirty-nine, and in describing the premises intended to be conveyed by said deed, according to such mistaken supposition; whereas, in fact, the said point, although being in the north line of said lot thirty-nine, was several chains east of the north-west corner of said lot, of which fact all the parties to said deed were then ignorant. That the actual location and extent of the two parcels intended to be conveyed were ascertained by view and inspection, and were understood correctly and alike by all the parties to said contract and deed in the time of their execution, and the grantees immediately took possession of the same, as owners, and of no other parcel or portion, under said deed, and the said Bush thereafter continued in possession of said adjoining parcel, claiming to own the same. That, on the 1st of April, 1867, the said grantees contracted to sell to defendant Henry Hicks the same premises purchased by them of Bush, and, for the purpose of performing said contract, executed and delivered to him a deed containing the same description as that contained in the deed first mentioned. That said Henry Hicks well knew, at the time when the plaintiffs executed said conveyance, that it was not intended by the parties thereto to convey any other land than said two parcels first mentioned; and that the parties to said deed supposed that the north-west corner of said second parcel intended to be conveyed was identical in the north-west corner of lot thirty-nine, and he also knew, by view and inspection, the actual location and extent of said two parcels intended to be conveyed by the plaintiffs, as aforesaid, at the time of such contract and conveyance, and ever since; and when he subsequently took his deed from said James E. Hicks and Mattice he knew that they had no title to any part of lot thirty-nine, except such as they acquired by said deed from the plaintiffs, and he and they intended said deed as a conveyance of said first two parcels, and o'f those only.
    Said Mattice subsequently died, and his representatives were made parties. Defendant Henry Hicks thereafter commenced an ejectment against plaintiff .Bush, seeking- to recover possession of the premises so included by mistake in the description in said deed, he claiming thereto under his deed above mentioned.
    The court adjudged that the deed from plaintiffs be reformed so as to include only the two parcels intended to be conveyed; and that defendant Henry Hicks be perpetually restrained from prosecuting further his action, or from instituting any other action to secure possession of the premises in question. Judgment was entered accordingly. The General Term modified the judgment by adding to the latter clause the words : “ except upon some right or title to be acquired hereafter,” and affirmed it as thus modified.
    Further facts appear in the opinion.
    
      D. B. Prosser for the appellants.
    The facts alleged in the second answer constitute a perfect answer to the whole action. (Leavitt v. Palmer, 3 N. Y., 19 ; Nevins v. Dunlap, 33 id., 676, 680 ; Story’s Eq. Jur., 167, § 150.) If the deed were drawn as agreed by the parties, it was immaterial whether they were mistaken as to the location of the corner of lot thirty-nine. (Leavitt v. Palmer, 3 N. Y., 19-38; Hunt v. Rousmaniere, 1 Pet., 14; Story’s Eq. Jur., §§ 150, 155, 156, 166; Storrs v. Barker, 6 J. Ch., 169, 176; Lyman v. U. Ins. Co., 2 id., 630; Nevins v. Dunlap, 33 N. Y., 676.)
    
      Daniel Morris for the respondents.
    The court will presume nothing in favor of the party alleging error in a judgment. (Meyer v. Amidon, 45 N. Y., 169; Carman, v. Pultz, 
      21 id., 547.) The deed could be reformed. (Smith v. Mackie, 4 Lans., 41; Rider v. Powell, 28 N. Y., 310; Johnson v. Taber, 10 id., 319; 46 Barb., 518.)
   Andrews, J.

Upon the facts found by the judge, a plain case was made for the reformation of the deed. The contract of sale related to that part of the plaintiffs’ land lying west of a line drawn from the alley, to the north bank of the canal and crossing the north line of lot thirty-nine, about a foot westerly from the carpenter’s shop. The alley was the boundary on the north; Liberty street on the east, and the canal on the south. The location and boundaries of the land were pointed out by the plaintiff to Hicks and Mattice, when the contract was made, and all parties understood that the land which the plaintiff was to sell, and which Hicks and Mattice were to buy, was that included within the boundaries mentioned. The plaintiff furnished to the scrivener his deed from Spencer as containing the description of this land, and the deed of which reformation is sought, described the land as in Spencer’s deed. This description, however, embraces land lying west of the west line of the premises agreed to be sold, and the misdescription both in the plaintiff’s and in Spencer’s deed was attributable to a misapprehension as to the location of the north-west corner of lot thirty-nine. The land intended to be conveyed by Spencer and by the plaintiff is intersected by the north line of the lot, and the point where this line touches the westerly line of the land contracted to be sold is described in both the plaintiff’s and Spencer’s deed as the north-west corner of lot thirty-nine, whereas, in fact, that corner was a considerable distance farther west. In consequence of this mistake, land lying west of the piece contracted to be sold is embraced in the description. It is claimed that, as the plaintiff knew the terms of the description inserted in his deed, and as the language employed was that intended to be used, there was no mistake. The answer is that the mistake consisted in supposing the description applied to the land intended to be conveyed, whereas it embraced much more; and a mutual mistake of this character is a ground for reforming a deed in equity.

The counsel is mistaken in supposing that a deed can be reformed only in cases where the mistake consists in the omission or insertion of words or clauses contrary to the intention of the parties. Although the parties understood what language was contained in the deed, if they believed the description corresponded with the actual boundaries of the land intended to be conveyed, and were mistaken, the case for a reformation was made out. Where the north-west corner of lot thirty-nine was, was a question of fact, to be ascertained by measurement and a survey; and the mistake was a mistake of fact- and not of law. (De Reimer v. Cautillon, 4 J. Ch., 85; Johnson v. Taber, 10 N. Y., 319.) We are of opinion that the facts found are justified by the proof, and that the case was properly decided on the merits. Some exceptions to the admission of testimony were taken. We have carefully considered them, and concur in the conclusions of the General Term, that they do not call for a reversal of the judgment.

The form of the judgment, as modified by the General Term, is not subject to objection. The defendant Henry Hicks claimed no title to the premises for which the ejectment was brought, other than that derived mediately under the plaintiff’s deed; and as be is in possession of that part of the land which he rightfully can claim under that conveyance, he was properly restrained from further prosecuting his action. The judgment does not enjoin him from proceeding to recover the land upon any other title which he may acquire.

The judgment should be affirmed, with costs.

All concur.

Judgment affirmed.  