
    Jerome J. Gallup, App’lt, v. Jacob Bernd, Resp't.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed April 19, 1892.)
    
    Limitation—Vendor and purchaser.
    Plaintiff, in January, 1880, sold a farm by the acre to defendant, part of the consideration being secured by a bond and mortgage, which was-subsequently satisfied, defendant paying the amount due, less $1,364. In, March, 1887, defendant' discovered, by a survey, that instead of the 330 acres supposed to have been conveyed, he was the grantee of only 311 acres, and demanded an appropriate allowance for the lessened acreage. In this action brought to recover the $1,364, and in which defendant in his answer alleged misrepresentation by vendor as to the number of acres, etc., Held, that as it was a case in which before the Code equity had exclusive jurisdiction, the ten year limitation applies.
    (Follett, Ch.-J., dissenting.)
    Appeal from a judgment of the general term of the supreme-court, fifth department, entered on an order affirming a judgment,, entered on the report of a referee.
    
      M A. Washburn, for app’lt; Myron H. Peck, Jr., for resp’t.
    
      
       Affirming 30 St. Rep., 1021.
    
   Parker, J.

The defendant purchased from plaintiff a farm,, part of the consideration being secured by a bond and mortgage.

Subsequently the bond and mortgage was satisfied, the defend,-ant paying the amount due less $1,364.98. He had agreed to pay all but $800, and to give bis note for that amount. But the money with which the payment on the bond and mortgage was made was borrowed from a savings bank, and the investigation instituted by that institution for the purpose of ascertaining the character of the title tendered, and the value of the property, led to a survey which disclosed that defendant instead of having granted to him over two hundred and thirty acres, was the grantee of only -two hundred and eleven and three one hundreths acres. Defendant then demanded from his grantor an appropriate allowance because of the lessened acreage.

The demand was refused; defendant declined to pay the $1,-364.98, or any part of it; plaintiff commenced this action to recover such sum; defendant in his answer alleged misrepresentation on the part of the vendor as to the number of acres, his reliance thereon, and demanded, among other relief, a reformation of the agreement, so that the consideration expressed should conform to the amount actually due, and a dismissal of the complaint.

On the trial the referee found that the sale was by the acre; the ■representation complained of made; reliance placed thereon by the defendant; his failure to discover the truth until shortly before the commencement of this action, and that defendant is entitled to an abatement from the expressed purchase price in an amount equal to the sum which the plaintiff claimed to recover, and directed a dismissal of the complaint. The facts found, and which come to us approved by the general term, except in so far as they may be said to involve a consideration of the statute of limitations, are in all essential respects like those in Paine v. Upton, 87 N. Y., 327, and therefore need not be discussed.

In his replj7 to the counterclaim set up in defendant’s answer, the plaintiff pleaded the statute of limitations. It appears that the deed was executed and delivered January 5, 1880; defendant’s discovery of the error in acreage occurred later than March 1, 1887, and this action was commenced about June 17, 1887.

On the first trial, judgment was directed in favor of the plaintiff, and in stating the reasons for reversing the judgment, the gen-eral term assumed the six years limitation to be applicable, but ■treated the suit as one in equity to recover a judgment other than ■for a sum of money on the ground of fraud, and therefore held that the statute did not commence to run until the discovery of the fraud.

But the findings of the referee on the retrial which are now before us, as we understand them, do not charge fraud on the part of the plaintiff, but rather that while the representations complained of were made to the defendant by the plaintiff, they were mistakenly made, and that the agreement which ripened into a -conveyance by which the plaintiff undertook to convey, and the ■defendant agreed to pay for,_ a greater number of acres than was in fact conveyed, resulted from a mutual mistake of fact. In Paine's case, as here, the deed had been executed and delivered und a bond and mortgage given for a portion of the purchase price before tlie mistake in the acreage recited in the deed was discovered by the grantee, and the court in a carefully considered opinion delivered by Andrews, Oh. J., held that the general jurisdiction of a court of equity to reform written instruments is not. limited to executory contracts; that the power should be exercised with great caution when invoked on the ground of mistake ; but such considerations address themselves to the chancellor in the exercise of the jurisdiction, and ought not to prevent the interference of equity when the proper occasion for interference arises.

The relief afforded in that case was by way of abatement of the consideration expressed, which was deducted from the sum secured •by the bond and mortgage given for the purchase price.

■ In the case before us, the court has decreed an abatement equal to the balance of the purchase price remaining unpaid. Now it is clear that the defendant had no remedy at law. The contract was executed ; was not procured through fraud; and in law the parties were bound by it. Equity, having a broader jurisdiction, could open the written contract even after it became executed,, to let in an equity and correct an error resulting from mistake.

Such correction could be made as well upon an equitable .defense set up in an answer as in suit brought directly for that purpose. Hook v. Craighead, 32 Mo., 405.

As this is a case in which before the Code equity had exclusive jurisdiction, the ten year limitation applies. Butler v. Johnson, 111 N. Y., 204; 19 St. Rep., 85.

The judgment should be affirmed.'

Follett, Ch. J.

(dissenting).—It is alleged in the answer that: “ The plaintiff falsely stated and represented to the defendant, that said lands contained in the aggregate 230 acres of land, and that the same would, if properly surveyed and measured, exceed that amount” Also, that the defendant relied on the representation and was induced thereby to purchase the farm, take the deed and execute and deliver to the plaintiff the bond and mortgage insecure $11,700. The referee found that the representation was made and that the defendant relied upon it, but he refused to-find that it was fraudulently made. The finding is in this language : “I further find that by the mutual mistake or false representation of the plaintiff and without loches on his part, he (defendant) paid and agreed to pay the plaintiff for 18 97-100 acres of land, which were not conveyed to him by the plaintiff.” As a conelu'sion of law the referee decided : “ I find that by reason, of the mistake made in the quantity of land sold and conveyed by the plaintiff to the defendant, there is nothing due from the-defendant to the plaintiff.” Assuming that the word “ falsely in the answer is used as a synonym for fraudulently, and that the-word “ false ” in the decision is used in that sense, there is no-finding that the plaintiff fraudulently misrepresented the quantity of land contained in his farm.

When a complaint alleges fraud, and only that, a judgment for the plaintiff on the ground of mistake cannot be sustained Mc Michael v. Kilmer, 76 N. Y., 36; Dudley v. Scranton, 57 id., 424. The answer contains no allegation that the original contract of purchase and sale, the deed and mortgage executed pursuant to-it, or the oral agreement of April 21, 1887, sued on, were, or that either was, entered into under a mutual mistake of fact The-answer asks for a reformation of the oral agreement of April 21, 1887, to pay $1,364,98, but it is not alleged that it was entered into under a mutual mistake of any fact, nor does the referee find that this agreement was entered into under a mutual mistake of fact. The defendant must prevail according to the case made by his answer, or not at all. Wright v. Delafield, 25 N. Y., 266; Day v. Town of New Lots, 107 id., 148; 11 St. Rep., 361; Abb. T. Brief, Pldgs., § 1027.

I am unable to see that any equitable defense is interposed in. the answer or established by the decision of the referee. A legal cause of action for the recovery of money only is stated in the-complaint, and a legal counterclaim is stated in the answer which, unfortunately, is barred by the statute of limitations. Code Civ. Pro., § 397. I regret that I cannot see my way clear to concur in. the equitable result reached by the prevailing opinion.

I think the judgment should be reversed and a new trial, granted.

Judgment affirmed, with costs.

All concur, except Follett, Ch. J., dissenting, and Haight,. J., not voting.  