
    James T. Penfield and Others, as Executors, etc., of George J. Penfield, Deceased, Respondents, v. The Village of New Rochelle and Others, Defendants, and New Rochelle Coal and Lumber Company, Appellant.
    
      Reformation of the description in a deed, of a street who is not a bona fide purchaser.
    
    Where a conveyance to a village of a street already opened describes, because of a mutual mistake, a piece of land other than that embraced in the street as actually opened, the deed will be reformed, on discovery of the mistake, after the lapse of six years, as against a party who, in the interval, has purchased of the grantor of the street land embraced within the street as actually opened, when the street, as opened, was clearly visible, and such purchaser was shown, at the time of his purchase, a diagram upon which it was laid out, and he at first began the construction of a building with reference to the street as actually located, although he changed the plan of the building when he learned what the description in the deed to the village was, and when notified that he was wrong and must not build there, responded: “ I know it, but' they tell me I can claim it there.”
    Appeal by the defendant, the New Rochelle Coal and Lumber Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the.county of Westchester on the 27th day of June, 18.95, upon the decision of the court rendered after a trial at the Westchester Special Term
    =7.' Addison Young and Michael J. ■ Tierney, for the appellant.
    
      Isaac N. Mills, for the respondents.
    
      Henry W. Taft, for the New York, New Haven and Hartford Railroad Company. ...
   Willard Bartlett, J.:

The judgment in this action directs the reformation of a deed dated July 12, 1886, whereby the late George J. Penfield conveyed to the trustees of the village of New Rochelle certain property which he desired to dedicate to public uses as a highway. From this judgment the village has not appealed. The only appellant is the New Rochelle Coal and Lumber Company, which has succeeded to the interest of James P. Canty, the original defendant in the suit, who claimed to be a bona fide purchaser, for value, of land which would be taken from him if the deed were reformed, without having had any notice of the alleged mistake in the description of the highway in the conveyance. The position of Canty and his successor is that equity cannot interfere to grant relief in such- a case, where the judgment will injuriously affect the bona fide purchaser for a valuable consideration without notice. (Kerr on Fraud & Mistake, 436; Casler v. Sitts, 6 Hun; 659.) They also insist, and, of course, they are entitled to take advantage of this point, if it be a good one, that there was not sufficient evidence of mutual mistake, even, as against the village, to warrant the rendition of the judgment under review.

At the time of the conveyance Mr. Penfield was the owner of a piece of land which lay between the New York, New Haven and Hartford railroad, on the north, and Huguenot street, in the village of New Rochelle, on the south. The piece was almost square, and was bounded on the west by land belonging to one Moulton, and on the east by land formerly belonging to one Sherwood. Before making any deed to the trustees Mr. Penfield opened a street fifty feet wide, leading through the middle of his property, from Huguenot street to the railroad. This-street ran nearly, but not quite, at right angles with Huguenot street. Subsequently a number of residents and taxpayers of the village, including Mr. Penfield himself, presented a petition to the trustees, asking them “to accept, and declare the opening and extending of a street called Mechanic street to the lands'of the New York and New Haven railroad, the same being fifty feet lawful width, through the lands of George J. Penfield, who has opened the same at his own expense, and now presents the village and town of New Rochelle for a public highway forever free from any costs or expenses.” The trustees discussed the petition and the clerk was requested by the board to write to Mr. Pen-field, asking him to give a deed of the land to the village. The president of the trustees was also instructed by the board to see Mr. Penfield in regard to the deed. This he did, and, at a subsequent meeting, the required deed was presented to the trustees and referred by the board to the president in order that he might examine the same and report thereon at the next regular meeting. This meeting was held on November 8, 1886, and Mr. Banks reported in favor of receiving the deed, which does not appear to have been recorded, however, until the 30th day of December, 1887.

It will be observed that the petition refers to the highway opened by Mr. Penfield as extending a street called Mechanic street, and it seems probable that this expression occasioned the mistake which has given rise to the present litigation. Mechanic street enters Huguenot street from the south on the side opposite Mr. Penfield’s property. It does not enter at right angles, but diagonally. An extension of Mechanic street across Huguenot street, upon lines in the same direction as those of the sides of Mechanic street, would carry the extension across Mr. Penfield’s land, for the most part, far to the east of the lines of the highway which he actually laid out and which were visible at the time of the presentation of the petition to the village trustees. When the deed came to be drawn, however, the description inserted therein located the new highway along these diagonal lines instead of locating it practically through the middle of Mr. Penfield’s property and nearly at right angles with Huguenot street. Precisely how the mistake was made is not disclosed. ;It is not improbable, however,, that the draughtsman of the deed inferred that the proposed extension of Mechanic street was to be along lines laid out in the same direction as the sides of that street, instead of along those of a highway which had actually been constructed, and which, while it might with equal propriety be termed an extension of Mechanic street, nevertheless ran in a somewhat different direction.

. We think the evidence was ample to justify the conclusion of the learned trial judge, that the' insertion ■ of this description was the result of a mutual mistake on the part of the grantor and the grantees. There can be ño real doubt that what Mr. Penfield intended to convey was a highway fifty feet wide, as already marked out, through the middle of his land. It is equally plain that it was this highway which the trustees of the village intended to accept and desired to' have conveyed to them by means of the deed which they requested should be given. The deed itself does not appear to have been read by any members of the board, except Mr. Banks, the president, who failed to -observe the error in the description. It • is urged in behalf of the- appellant that, in view of the rule which requires clear proof to establish-a mutual mistake in a conveyance; all the trustees should have been called as witnesses, and that the testimony of Mr. Banks alone was not sufficient Inasmuch, however, as it appears that he was the only' trustee who really kneW anything about the matter, and as his testimony tends strongly to •establish the mistake, we think it was quite enough, in the absence of all proof to the contrary. Mor does the fact, if it be a fact, that Mr. Penfield and Mr. Banks read the description in the deed affect the rights of the parties to the conveyance to have it reformed if they mistakenly believed that the description corresponded with the actual boundaries of the land intended to be conveyed. (Bush v. Hicks, 60 N. Y. 298.)

A more serious question is presented in respect to. the right of ■ the plaintiffs to have the deed reformed so as to affect the Mew Rochelle Coal and Lumber Company, which has become the suecessor in interest to the defendant Canty. The mistake in the deed of the highway was not discovered until 1893. Several years previous Mr. Penfield sold to Mr. Charles G. Banks a portion of his property through which the Mechanic street extension ran, as the same was actually laid out. Mr. Banks thus acquired a lot on the northwesterly corner of Huguenot street and ■ the Mechanic street extension, which he sold to the defendant Canty on January 26, 1893. The description in his conveyance to Mr. Canty shows that it related to the extension as it existed. Neither Mr. Banks nor Mr. Canty, nor anybody else seems to have suspected at that time that the extension, as described in Mr. Penfield’s deed to the village, was in any respect different from the highway in use by the public. Mr. Banks testified, and the court at Special Term evidently believed, that he repeatedly had conversations with Mr. Canty in regard to the location of this Mechanic street extension in the course of the negotiations for the sale ; that the street was clearly visible at the time, and that he showed Mr. Canty a diagram, which appears in the record and upon which the Mechanic street extension,' given to the village by Mr. Penfield, is represented as running at right angles to Huguenot street instead of diagonally from Huguenot street to the railroad, as would have been the case if the lines erroneously inserted in Mr. Penfield’s deed to the village had been copied. Some criticism is made by the appellant upon this diagram, because, as, matter of fact, the direction of the highway, even where Mr. Penfield claimed it belonged, was not exactly at right angles with Huguenot street; but we think this difference was too slight to be material. If Mr. Canty bought, as he appears to have done, with reference to the Banks diagram, he knew perfectly well that he had not acquired any right to put his building where he subsequently placed it. At first he began to build with reference to the line of the existing street, but afterwards, having learned what was the description of the Mechanic street extension in Mr. Penfield’s deed to the village, he altered his plans and constructed part of his bnild- ' ing with reference to the line of the highway as indicated in that description. Mr. Banks testified that very soon after he observed this change he notified Mr. Canty that he was wrong and must not build there, inasmuch as he had not bought there, to which he tells us Mr. Canty responded: “I know it, but they tell me I can claim it there.” Thereupon, according to Hr. Banks’ testimony, he . told Hr. Canty that Hr. Penfield had sued the villagé to correct the error in the deed. Nevertheless, Hr. Canty continued and finished his building.

It is true'there is a direct and positive denial by Hr. Canty of the truth of these statements; but the trial judge has found against him on this issue, and we cannot say that the finding is without adequate evidence to support it. - It is argued that there was unreasonable delay in bringing the suit, and that equitable relief should have been denied on that ground. The action appears to have' been commenced, however, very soon after the. mistake was discovered, and no blame can be attached to Hr. Penfield for not discovering it earlier, because nothing had occurred with reference to the highway, or the property. in' the vicinity to indicate that the description in his deed was erroneous. Such conveyances as had been made were all evidently based upon the location of the extension of Hechanic street along the lines Upon which it had actually been opened and just where he supposed the description in his deed would show it to be located. In cases of this kind, courts are liberal in granting relief, even where there has been a considerable lapse of time. (Gillespie v. Moon, 2 Johns. Ch. 585, 602; Andrews v. Gillespie, 41 N. Y. 487, 491.)

The only other point that requires consideration is the fact that after Hr. Canty began to btiild he was enjoined, and that the injunction was subsequently dissolved at Special Term by Hr. Justice Dykmait. The record discloses very little about this in junction suit, but the learned trial judge, in his opinion,, remarks that the application could not have been fully presented to him at the time and that he could not then say that Hr. Canty was wrong. We are unable to see how this refusal to continue a provisional remedy can be regarded as in any respect a conclusive determination as to Mr.. Canty’s rights in the. premises. If the case had proceeded to judgment, a very different question would be presented.

Before the deed from Hr. Penfield to the village was recorded there was placed upon record a subsequent deed from Hr. Penfield • to the New York, New Haven and Hartford Railroad Company of a portion of his property near the railroad line. This conveyance being first in order of record operated to deprive the village of a portion of the proposed highway. It was to protect its right to this property that the railroad corporation appeared in the litigation; but no claim to the premises embraced in its deed seems to have been seriously made upon the trial, nor has any been asserted upon this appeal.

The judgment should be affirmed, with costs.

All concurred.

Judgment affirmed, with costs.  