
    BUTLER v. CLARK.
    
      N. Y. Supreme Court, General Term, First Department ;
    
    
      December, 1892.
    1. Reformation of instrument; sheriff's deedl\ A sheriff’s deed, given to the purchaser at an execution sale, may be reformed to correct a mistake in the description of the premises, where the deed, notwithstanding such mistake, sufficiently identifies the premises.
    
    
      2. Execution; sheriff's deedl\ A sheriff’s deed, given after a sale- ' of premises upon execution, erroneously described the premises as being situated 151 feet, instead of 181 feet, from a certain corner, but there was also at the end of the description of the premises the following recital: “ Being the same premises of which Sarah Clark died seized on the 8th of February, 1885^ and which are known as number 216 West Forty-third street, in the City of New York.”—Held, it appearing by extrinsic evidence that Sarah Clark died seized of 216 West Forty-third street, and had never possessed any other property upon that street, that such recital identified the premises with common certainty, and that the deed was not nullified by the prior mistake.
    3. Parties’, action for reformation of instrument.] A grantee from a purchaser at an execution sale of an undivided interest of an heir in real estate may maintain an action against the judgment debtor, and those claiming under him, and the co-heirs, to reform a mistake in the description of the premises in the sheriff’s deed to plaintiff’s grantor ; and it is not necessary that either the sheriff, who gave the deed, or the grantor therein, should be made parties to such action.
    Appeal from a judgment of the Special Term in favor of plaintiff.
    The action was brought by Edwin W. Butler against Garrett D. Clark, and others, to reform a sheriff’s deed, made pursuant to a sale under execution-; -and for certain other purposes.
    The further facts are fully stated in the opinion.
    
      
      William H. Arnoux (Arnoux, Ritch & Woodford, attorneys) for appellants.
    I. The judgment plaintiff should have been a party (citing Runnels v. Kaylor, 95 Ind. 503).
    II. A mutual mistake of fact must exist to give a court of equity authority to reform a contract, and in such case there can be no rescission (citing Rider v. Powell, 28 N. Y. 310; Born v. Schrenkeisen, 110 Id. 55; Thomas v. Harmon, 122 Id. 84; U. S. v. Munroe, 5 Mason, 572).
    III. Equity will not reform an official deed on the ground of mistake, unless it be clearly shown that such mistake was made on the part of the official, after the initiation of the proceedings (citing Nevius v. Dunlap, 33 N. Y. 676; Story v. Conger, 36 Id. 673; Jackson v. Andrews, 59 Id. 244; Mead v. Westchester Ins. Co., 64 Id. 453 ; Hearne v. Marine Ins. Co., 20 Wall. 488 ; Paget v. Marshall, 28 Ch. Div. 255 ; Douglas v. Grant, 12 Ind. App. 273 ; Dulany v. Rogers, 50 Md. 524 ; Diman v. Providence, Warren & Bristol R. R., 5 R. I. 130; Bright v. Boyd, 1 Story C. C. 478; Keepfer v. Force, 86 Ind. 81; Bernstein v. Nealis, Law Journal, Oct. 4, 1892; Haley v. Bagley, 37 Mo. 363 ; Clarke v. Miller, 18 Barb. 269; Laub v. Buckmiller, 17 N. Y. 620, 625 ; Clendening v. Ohl, 118 Ind. 46; Rogers v. Abbott, 37 Id. 138; Mahan v. Reeve, 6 Blackf. 215 ; Dickey v. Beatty, 14 Ohio St. 389 ; Ward v. Brewer, 19 Ill. 291 ; Puterbaugh v. Elliott, 22 Minn. 157; Mason v. White, 11 Barb. 173 ; Wood v. Amory, 105 N. Y. 278).
    
      Henry P. Starbuck, for respondent.
    
      
       The fact that the repugnancy might be explained by oral evidence in any action at law which might arise involving the title, is not necessarily a reason for denying equitable relief.
      It is true that there are cases holding that equity will not interfere to relieve against an act or instrument which may be disregarded at law. Metropolitan Elev. R. Co. v. Manhattan Ry., 14 Abb. N. C. 103.
      But the better opinion is that an infirmity in title, which may require oral evidence to meet, is, in a proper case, sufficient ground for the interposition of equity. The rule as to suits to remove cloud on title, is a familiar instance of this principle. Wood v. Seely, 32 N. Y. 105 ; Boyle v. City of Brooklyn, 71 N. Y. 1 ; rev’g 8 Hun, 92, and holding such ground sufficient, even though, there was another defect which appeared on the face of the pleadings.
      So it has recently been held in a very able opinion by Justice Field, that one having title by adverse possession may maintain a bill to turn that title which was dependent on matter in fais into a record title by getting a decree in equity. Sharon v. Tucker, 144 U.S. 533.
    
   Lawrence, J.

This action was brought by the above named respondent, Edwin W. Butler, as plaintiff, to obtain, as against the above named appellants, Garret D. CÍark, individually and as administrator of the goods, chattels and credits of Sarah Clark, deceased, Edwin Clark, Jessie Fremont Clark, and others, who have not appealed, as defendants, a judgment reforming a sheriff’s deed, made pursuant to a sale,' under execution, of the interest of Edwin Clark in certain property in the City of New York. The action as brought had also certain other purposes-which are immaterial upon this appeal.

For the purpose of a full understanding o'f the case a chronological statement of the facts will be necessary.

On the 18th of September, 1879, Sarah Clark, the mother of Edwin Clark, recovered judgment against him for $1,725.56. On the 10th of March, 1883, Johanna Donovan recovered judgment against Edwin Clark for $311.42. On the 8th of February, 1885, Sarah Clark died intestate, seized and possessed of the premises which form the subject of this controversy and of certain personal property, leaving her surviving Edwin Clark and a granddaughter, Sarah E. Clark, now Mrs. Worden, her only heirs at law. She also left her surviving, the appellant, Garrett D. Clark, who has ever since been in possession of the premises as-tenant by the courtesy.

On the 25th of February, 1885, Garrett D. Clark, the husband, was appointed the administrator of the estate of Sarah E. Clark. On the 2nd of January, 1886, Edwin Clark conveyed his interest, as one of the heirs at law of Sarah Clark, to Celia K. Haynes, and on the same day Celia K. Haynes conveyed the same to Jessie Fremont Clark, the wife of Edwin Clark.

On the 7th of October, 1887, execution was issued on the Donovan judgment against Edwin Clark, and on the 6th of December, 1887, a sale was made by the sheriff under that judgment, at which sale the sheriff sold Edwin Clark’s interest in the premises inherited from his mother to John H. Birch; on the 15th day of March, 1889, this interest, not having been redeemed, was conveyed to said Birch by Hugh J. Grant, then sheriff of the City and County of New York.

The sheriff’s deed followed the description contained in the deeds by which Edwin Clark had previously conveyed the property to his wife, and,- while describing the premises in other respects accurately by metes and bounds, located them erroneously as one hundred and fifty-one feet, instead of one hundred and eighty-one feet west from Seventh avenue. The sheriff’s deed, at the end of the description of the premises conveyed, contained the following recital: “ Being the same premises of which Sarah Clark died seized on the 8th day of February, 1885, and which are known as number 216 West Forty-third street in the City of New York.”

It was shown on the trial that Garrett D. Clark was present with his counsel at the sale, and that he knew that Mrs. Sarah E. Clark was in possession of the premises at the time of her death, and did not hold title to any other property on that street at the time of her death, that the whole south side of the stree.t was built up with a continuous row of houses, covering one lot apiece, and marking the locations and widths of all the lots to the eye ; that- no lot commenced o.ne hundred and fifty-one feet west from Seventh avenue, but that the point on the south side of the street lying at that distance ujest from the avenue, fell within a lot seventeen feet wide, four feet from one side and thirteenth feet from the other, on which stood a house of which the street number was 212 and which was built in 1856 ; that there was no other lot nineteen feet wide on the. block than No 216; that the nearest in width of the narrower lots was seventeen feet wide, and the nearest of the wider lots twenty feet, the latter being two hundred feet away ; and that the house No. 216 covered the premises in question and had been so built and numbered since 1855.

On the 30th of August, 1889, John H. Birch conveyed his interest in the premises to the respondent by a deed, in which it was correctly described, and this action was commenced on the 3d day of September, 1889, to reform the sheriff’s deed, by changing the word “ fifty ” to the word. “ eighty,” in the statement therein of the distance of the said lot, piece or parcel' of land from the corner of Forty-third street and Seventh avenue.

It was alleged in the complaint that Edwin Clark’s distributive share of the personal estate of his mother exceeded the judgment held by the administrator, and that an error had been committed in the sheriff’s deed, whereby the premises included therein were described as being one' hundred and fifty-one-feet from the corner, instead of one hundred and eighty-one feet, as it should have been. The complaint prayed for an accounting of the administrator to determine the distributive share of Edwin Clark ; second, for the application of such distributive share to the extinguishment and cancellation of the Clark judgment; third, if such distributive share is insufficient therefor, then to determine the excess, and -compel the sheriff to pay the same ; and, fourth, to reform the sheriff’s deed by changing “fifty” to “eighty.”

The plaintiff subsequently filed a supplemental complaint, alleging that the judgment obtained by Mrs. Clark against Edwin Clark ceased to be a lien upon the premises on the 18th of September, 1889, and that on the 23d day of October, 1889, the said sheriff, under said judgment, sold the interest of Edwin Clark in the premises he inherited from his mother for $2,725 to Garrett D. Clark, but that he had not paid anything on account thereof, and prayed that said sale be declared void and abandoned, and that the sheriff should be enjoined from completing the same.

The answers put in issue the material allegations of the complaint respecting the right of action in the plaintiff.

Several questions are presented by the appellants upon this appeal; but the main and radical question discussed by them is as to the alleged error of the justice presiding at the Special Term in refusing to dismiss the action as against all the defendants.

It is argued, in the first place, that neither the plaintiff nor Sheriff Flack was a party to the deed complained of and that Sheriff Flack, as the official successor of Sheriff Grant, was not answerable for .the errors or mistakes of the latter. This is true, but the admission of that fact is not conclusive upon the question whether the plaintiff is entitled to have the deed of Sheriff Grant reformed, if the court can see that in point of fact the latter not only intended to sell-, but actually sold, the premises No. 216 West Forty-third street. Common certainty is all that is required in the descriptions of real property upon a sheriff’s sale under execution (Code Civ. Pro. § 1435). And, as was said by Mr. Justice Davis in delivering the opinion of the supreme court of the United States in White v. Luning (93 U. S. 514): “ In regard to the description of the property conveyed the rules are the same whether the deed be made by a party in his own right or by an officer of the court. The policy of the law does not require courts to scrutinize the proceedings of a judicial sale with a view to defeat them. On the contrary, every reasonable intendment will be made in their favor, so as to secure, if it can be done consistently with legal rules, the object they were intended to accomplish.”

To the same effect is Farmers’ Loan and Trust Co. v. Eno (21 Abb. N. C. 219); Hathaway v. Power (6 Hill, 453); Dygert v. Pletts (25 Wend. 402), and numerous other cases.

In Hathaway v. Power (supra), the court said: “ Where the description given in a deed contains several particulars, all of which are necessary to ascertain the land intended be conveyed, nothing but what will correspond with all those particulars can pass by the grant; but if there be certain parts sufficiently ascertained to locate the land, the addition of false or mistaken particulars will be rejected.”

In Dygert v. Pletts (supra) it was held, that a sheriff’s deed conveying all the right and title of the defendant in an execution to a lot of land, described as lying on the south side of a particular creek, in a given town and county, is not void for uncertainty in the description of the premises, although but a single line be given in the deed as a boundary, where the fact is shown that the defendant in the execution claimed to be the owner of the land situated between such line and creek. NELSON, Ch. J., in delivering the opinion of the court in that case, said : “ Certainty to a common intent is all that is required, and if there be a certain number of particulars given sufficient to designate the thing intended to „be granted, the grant will be effectual, though there may be others false and mistaken (citing 6 Cow. 281). Also that it should be as favorably construed for the grantee as is consistent with the rules. of law, ut res magis valeat quant periat."

In the case of Ousby v. Jones (73 N. Y. 621 ; opinion in full annexed to respondent’s brief), the court of appeals held that the clause in the description of property contained in a deed coming last, and seeming to be the intention of the parties to the conveyance, must have a controlling effect upon all the phrases used by the draughtsman in setting forth the description of the premises.

Bearing in mind the provisions of the Code of Civil Procedure, above referred to, and the principles enunciated in the cases just cited, we have no difficulty in coming to the conclusion that the premises intended to be conveyed by the sheriff were those known as No. 216 West Forty-third street, of which Sarah Clark died seized on the 8th of February, 1885. The error in locating the premises as commencing at a point one hundred and fifty-one westerly, instead of one hundred and eighty-one feet westerly, from the corner formed by the intersection of the southerly side of Forty-third street, and the westerly side of the Seventh avenue, does not, in our opinion, nullify the deed.. The premises are sufficiently identified by the recital at the end of the description, and by the fact that Sarah Clark had never possessed any other property upon that street, and that ■ she died in possession, of the same. We think,, therefore, that the judgment correcting and reforming the sheriff’s deed by striking out therefrom the word “ fifty and inserting in place thereof the word “ eighty ” in the distance as therein stated and given of the premises from the southwest corner of Forty-third street and Seventh avenue is correct.

The plaintiff does not ask, to have a new deed executed by the defendant Flack in lieu of that executed by Grant, the former sheriff; he does not ask for any other deed, but simply prays that the deed actually executed may be •corrected as to a clerical error, all of the parties who were shown to have any interest in the premises conveyed being before the court. He asks, in other words, to have an official act made to conform to the actual understanding and intent of all the parties. And for this purpose it was not necessary that Grant, the former sheriff, should be made a party to the action. On the evidence in the case, there can be no reasonable doubt as to what premises were intended to be conveyed, and it is the duty of a •court of equity, on the facts presented, to see that that intention is made clear upon the record.

It is contended, however, that Flack was not a necessary party to this action, inasmuch as he could not correct the alleged error of his predecessor. We have shown that he is not called upon to do so. But there are two answers to this objection on the part of the defendants. There is no answer or demurrer to the effect that there is a defect or improper joinder of parties in the action ; and, secondly, Flack was a proper party to the action, because a portion of the relief sought by the plaintiff in his supplemental complaint was to have declared void an alleged sale by Sheriff Flack under an execution issued on the judgment obtained by Sarah Clark against Edwin Clark on the 18th of September, 1879, and to restrain said Flack from making, executing, delivering or filing any certificate of sale or deed based upon said attempted sale, etc. (Barbour on Parties, p. 735, and cases cited).

The appellants further contend that the court improperly denied the motion to dismiss the complaint as against Edwin Clark, the judgment debtor, through the purchase of whose interest on the sale, and under the deed aforesaid, the plaintiff claims his title. This objection we regard as unfounded, for the reason that the main object of this action is to reform a deed executed upon the sale of his interest; and, being a suit in equity, he was a proper and necessary party in order that his rights might be ascertained, if any he had, and protected, and that every person interested in the remotest degree in the premises sold should be before the court.

It is also contended that the court improperly denied the motion to dismiss the complaint as against Garrett D. Clark individually. But this position is not tenable, for the reason that it was admitted by the supplemental answer of the defendant Clark, that on the 31st day of March, 1891, Flack, as sheriff, had executed and delivered to him a deed bearing date on that day, whereby he conveyed to the defendant all the right, title and interest which the defendant, Edwin Clark, had on the 18th day of September, 1879, * the property in question, although at that time, as Sarah E. Clark was alive, Edwin Clark had no interest in the property. The defendant Garrett D. Clark relies upon the same as giving him an interest in the property in his' individual right, independently and distinctly from any right which he had in the premises, either as tenant by the curtesy, or as administrator of his wife’s estate.

The cases which are cited by the learned counsel for the appellants are not adverse to the views we have expressed. Whatever doubt there may have existed theretofore as to the power of the court to reform a sheriff’s deed, in an action to which even the sheriff was not a party, was set at rest by the court' of appeals in the case of Bartlett v. Judd (21 N.Y. 200), in which the case of Mason v. White (11 Barb. 173), which was supposed to sustain a contrary doctrine, is discussed. Mr. Justice Bacon, in delivering the opinion of the court, says—after showing that the facts in the case of Mason v. White were different from those in Bartlett v. Judd, and that in that case parol evidence as to the intention of the sheriff in regard to the land intended to be sold might well have been excluded : “ But when the learned judge in that case states that, although as betwéen man and man, deeds may be explained and reformed by reason of either fraud or mistake, but that a deed of a sheriff cannot be thus reformed, he states a proposition for which I can'find no authority in the books, and from which I am constrained to dissent. The only case referred to for this doctrine is Jackson v. Delancy (13 Johns. 536), which certainly decides nothing more than that in a sheriff’s deed the land must be described with reasonable certainty. The deed in that case having undertaken to convey, with two parcels well described, all the other lands of William Earl Sterling in the County of Ulster, it was held to be void for uncertainty. No such principle as this was necessary to the decision of the case of Mason v. White, which can well stand without its aid. And, if fully carried out, this doctrine would place both the certificates and the deeds of sheriffs utterly beyond the reach of the law, although its aid were invoked upon the clearest proof of inadvertence, mistake or fraud.”

It was within the power of the justice who tried the cause at Special Term to reopen the case upon notice to the parties, and to receive the additional evidence which is contained on pages 49 and 50 of the case. In that respect he had a discretion, and there is nothing to show that the discretion was abused. Indeed, it seems to have been wisely exercised, as it put the court in complete possession of all the facts of the case, and enabled it to adjust and settle the rights of the parties as justice and equity required.

We are of the opinion, therefore, that the judgment below should be affirmed, with costs and disbursements.

O’BRIEN, J.

(concurring)—The judgment corrected the error in the description. No deed or" act of Grant, as sheriff, was necessary for this purpose, and apart from his former official relation, he was in no way connected with the property. All persons having an interest were made parties, and the judgment could be rendered without the presence of the sheriff, against whom no judgment was asked and from whom nothing was required. I concur, therefore, with Mr. Justice Lawrence for affirmance.

Van Brunt, P. J.

(dissenting)—I dissent. I am of the opinion that Sheriff Grant was a necessary party to the action. Ido not see what authority the-court had to alter an instrument executed by a person without giving him an opportunity to be heard.

Judgment affirmed.  