
    Cameron vs. C. & W. Irwin.
    Evidence of a mistake in a deed of lands is not admissible at law for tKe purpose of varying its effect; though otherwise in equity.
    Payment of a mortgage extinguishes the power of sale contained in it; and if a statute foreclosure afterward take place, even a bona fide purchaser at the sale will acquire no title. Per Cowen, J.
    Where the- foreclosure took place for the benefit of an assignee, and the property was bid in by him at the sale; held, that he acquired no title.
    The cases of Jackson v. Henry, (10 John. Rep. 185,) and Jackson v. Slater, (5 Wend. 295,) explained and limited. Per Cowen, J. -
    -Payment of a judgment extinguishes the power of selling under it. Per Cowen, J.
    The granting of a new trial on a cáse is in the discretion of the court; and if, on the whole matter, it appear that legal justice has been done,' the motion will be denied. Per Cowen, J.
    Accordingly, where the. circuit judge overruled a valid defence which was fully established, but directed a verdict in favor of the defendant on an erroneous ground, and the plaintiff moved for a new trial on a case, the motion was denied.
    To defeat a deed of lands on the ground that the grantor was not in possession at the time of its execution, an actual or constructive adverse possession in another must be clearly proved. Per Cowen, J.
    Such adverse possession, however, will not affect the deed, if it appear that both the grantor and the adverse claimant were under an equitable obligation to convey. Per Cowen, J.
    . The statute of maintenance was intended for the protection of adverse claimants J and they may renounce the benefit of it. Per Cowen, J.
    A mortgagee may, for the purpose of remedying a defect in his title, purchase in an outstanding one and enforce it against the mortgagor. Per Cowen, J..
    Actual payments of prior incumbrances by a mortgagee, entitle him, in equity, to hold till reimbursed by the mortgagor. Per Cowen, J.
    A., being the owner óf a farm containing 320 acres, executed a deed to B,,.intend, ing thereby to convey the whole; but, by reason of a mistake in the description, the deed only conveyed about one third of the farm. B. took possession and executed a mortgage, intending that it should cover the whole farm, but which in fact contained a description copied from the deed. The mortgage was assigned to D. and foreclosed under the statute, he becoming the purchaser. Some time afterward D. discovered the mistake in the deed and mortgage, and requested A. and B. to correct it, threatening to file a bill against them if they refused. B. said he would abide by whatever A. thought proper to do in the matter, whereupon the latter executed to D. a quit claim deed of the whole farm, B. being still in possession. Held, that the quit claim was valid, notwithstanding B/s. possession, and that D. acquired title to the whole farm.
    . Ejectment, tried at the Steuben circuit, in May, 1836, before Monell, C. Judge. The declaration contained three counts—■ one in favor of C. Cameron, as devisee, trustee and executor of Dugald Cameron deceased, another in favor of Leland, as devisee and trustee of W. Helm deceased, and a third in favor of both plaintiffs jointly, in their representative capacity. The premises were described in the declaration as a lot of land containing 250 acres, lying in township No. 4 in the 4th range of townships in the county of Steuben, being situate in the town of Bath in said county, and being the western part of the Robin-farm, so called, bounded &c."
    On the trial, the plaintiffs were shown to be trustees of the real estate of which their testators died seised respectively, and it was admitted that the defendants were in possession of the premises in question at the commencement of the suit. It was also admitted that D. Cameron was seised in fee of the Robin-farm prior 'to and until the 6th of December, 1810. That farm contained upwards of 320 acres, and was described and bounded as follows: “ All that certain piece, parcel or tract of land lying and situate in township No. 4 &c., beginning on the northwesterly hank of the Cohocton creek &c., thence south sixty degrees west sixty-five chains to a stake and stones, thence south two degrees west thirty-five chains and sixty links to a stake and stones, thence south eighty-eight degrees east seventy chains to a post, thence north two degrees east twenty-six chains to the southwesterly bank of said Cohocton creek, thence up the same &c. to the place of beginning, containing three hundred and twenty acres of land, be the same more or less, as surveyed by Peter C. Loop” &c. On the 6th of December, 1810, D. Cameron executed a deed to Helm, in which the premises conveyed were described as above, except that the second course (the words in italics) was omitted, so that the description really included but about 100 acres of land, in a triangular form, being the northern part of the Robin-farm. On the 14th of November, 1815, Helm executed a mortgage to one Haight, which described the premises precisely as in the deed from D. Cameron. This mortgage was¡,assigned to Elisha Williams, and was afterwards foreclosed by advertisement, Williams becoming the purchaser. The sale was made by Haight, as auctioneer, on the 14th of June, 1817. The foreclosure proceedings were conducted in the name of Haight, the mortgagee, who executed to Williams the usual deed in such cases, dated September 5th, 1817. The description of the land in this deed followed that contained in the mortgage. On the 8th of February, 1823, D. Cameron gave a quit claim deed to Williams of the whole Robin-farm. Williams afterwards sold the eastern 120 acres of the Robin-farm to one McCoy, and contracted to sell the residue (the premises in question) to the defendants.
    Considerable evidence was given during the course of the trial going to show that the deed from D. Cameron to Helm, as well as the mortgage from Helm to Haight, were intended to embrace the whole of the Robin-farm, and that the omission to insert the second course arose from accident and mistake.
    The plaintiffs’ counsel offered to prove that the mortgage rvas paid up and discharged prior to the foreclosure. The defendants’ comisel objected, and the circuit judge refused to receive the evidence.
    It was insisted, among other things, by the plaintiffs’ counsel, that the deed from D. Cameron to Williams was void for maintenance. The facts relating to this branch of the case will be found sufficiently stated in the opinion of the court.
    The circuit judge charged the jury that the mortgage covered the whole Robin-farm, and that Williams acquired title thereto under the foreclosure. He further charged that the deed from D, Cameron to Williams was void for maintenance; but that the defendants were entitled to a verdict on the first ground. The jury rendered a verdict for the defendants, and the plaintiffs now moved for a new trial on a case.
    
      Z. A. Leland, for the plaintiffs.
    
      E. Howell, for the defendants.
   By the Court, Cowen, J.

Dugald Cameron’s original title to the whole of the Robin-farm, said -to"contain 320 acres, is not disputed. On the 6th of December, 1810, by deed of that date, he conveyed a portion, lying in the form of a triangle on the northern part of the farm, and containing about 100 acres, to William Helm, who, on the 14th of November, 1815, executed a mortgage of the same portion to Samuel S. Haight, which mortgage was assigned to Elisha Williams. The mort gage was foreclosed by advertisement, the land being bid in for his benefit, and the auction deed taken in his name. The defendants claim under him.

Neither the conveyance to Helm, nor his mortgage to Haight, however, covered the premises in question. It was sought, at the trial, to show by extrinsic circumstances that they did so; and the judge finally came to that conclusion. To warrant this, a line must somehow be imported into these instruments, running from the termination of the first line in each, south two degrees west thirty-five chains and sixty links to a stake and stones. I am not aware of any principle on Avhich this can be done; nor Avas any mentioned upon the argument. The line, no doubt, Avas omitted by mistake; but the deeds cannot be rectified at law. Relief, if due to the case, can be given by chancery only.

If otherwise, hoAvever, and admitting the foreclosure to have been regular, we think the proposed proof of payment should have been allowed. Even if Williams Avas a bona fide purchaser, his case comes directly within the reason of Wood v Colvin, (2 Hill, 566.) It was there held that payment of a judgment extinguished the power to sell under it. Williams was certainly no more a bona fide purchaser than the defendant who took under the sale on the judgment and fi. fa. in that case; and the defendants in this, could acquire no better title from Williams than he himself had. The statute under which this foreclosure took place provided that no sale authorized by special power should be defeated to the prejudice of a bona fide purchaser. (1 R. L. of 1813, p. 373, 4.) There must be a power. Payment extinguishes it; and the case becomes the same as if none had ever been inserted in the mortgage. The case of Jackson v. Henry, (10 John. Rep. 185,) turned on the construction of the statute of usury. Were the point in that case res integra, it might be very difficult to prove that a power to sell under a usurious security is not void, in the words of the statute of usury, to all intents and purposes; and especially against the man who participates in the concocting of the security, and his assignees. The precedent should not be extended. There are many decisions upon the usury act which are entirely anomalous. By payment, the whole mortgage is extinct; as much so as if released or paid and cancelled of record. It ceases to operate either at law or hi equity, and the whole title revests in the mortgagor. (Jackson, ex dem. Randall, v. Davis, 18 John. Rep. 7, 12; Edwards v. The Farmers' Fire Ins. & Loan Co., 21 Wend. 483, 486, 487, and the books there cited; 26 Wend. 541, S. C. on error.) To call it a mortgage, would be an abuse of the word. It is no more than a blank. It cannot be that a naked foreclosure by advertisement shall take away a man's farm.

A valid power is necessary as the foundation of the purchaser’s title. The case of Jackson, ex dem. Mackay, v. Slater (5 Wend. 295) merely holds that a statute foreclosure, though after twenty years, rebuts the presumption of payment arising from lapse of time. Other circumstances also came into that case, rendering it proper that the jury should say whether the presumption was not overcome. It was not held that the foreclosure was conclusive of title, payment or no payment. It was taken for granted that, though the lessor of the plaintiff was the purchaser, he must fail, unless the jury should find that his purchase was based on an unpaid mortgage. If this were not so, why did the court talk of rebutting the presumption of payment? Why not say that the plaintiff must recover whether there was a payment or not ? He wanted no mortgage. He could have taken the farm on the newspaper and the auction. If these be equal to a foreclosure in chancery, no mortgage need be shown in the chain of proof. Take it that the old statute was as strong as the present, (2 R. S. 451, 2d ed. § 8,) viz: “ Every sale pursuant to a power as aforesaid,” made to a purchaser in good faith, shall be equivalent to a foreclosure and sale in equity. The case before us still wants the two ingredients; a power and a purchaser bona fide. Surely an assignee has not come to be considered as holding by a right paramount to that of his .assignor, like a bona fide purchaser of commercial paper. I admit that Jackson v. Henry goes that length, and even farther than the law had ever gone in favor of commercial paper. It is another reason why that case should not be extended in its application beyond the letter.

Taking it, therefore, that the mortgage and foreclosure in question were duly proved, and that they comprehended the premises in question, yet, if no defence independently of these was established at the circuit, there should be a new trial.

The case, however, not being here on bill of exceptions, the obligation to order a new trial is not peremptory, though the judge erred in directing a verdict for the defendants on the mortgage, if he also erred in overruling a defence fully established upon other grounds. The granting of a new trial on a case, is matter of discretion; and if the court see that legal justice has- been done by the verdict, they will not disturb it.

Williams having, after the foreclosure, discovered that neither the lines of Helm’s title nor those of the mortgage covered more than a third of the land intended, immediately set about having the mistake rectified. He applied both to Helm the mortgagor and Cameron his grantor. Helm himself had, it seems, already discovered the mistake, and retained a surveyor to ascertain its extent. There was in fact, by the omission of the west line, a difference of more tiran 200 acres. That in the deed to Helm this was owing to a mere clerical slip of the scrivener, there is not the least doubt. Cameron admitted that the whole Robin-farm had been conveyed by him in exchange for Sodus property. He credited the whole in account, and assured a man who proposed to buy it of Helm, that the title was good. The leaving of the west line out of the deed had contracted the farm into a triangle of about 100' acres. Haight says the lines of the mortgage had been transcribed from the registry of, Helm’s title ; and it is scarcely possible for the mind to resist the conclusion that the omission was a sheer mistake. The difference was most glaring. It was known to all parties; and a court of chancery would have unhesitatingly compelled both Cameron and Helm to make new deeds including the line that had been dropped; and they would have been enjoined by that court had they brought ejectment. The true lines were apparent on the ground. They were marked around the whole Robin-farm; were easily traceable down to the time of the trial; and had doubtless been run by the very survey of Loop referred to in the deed. All this now comes out in evidence from trustees under the wills of Cameron and Helm. It is true, Helm did at first say to Williams that his mortgage was never intended for more than the triangle; and refused to correct it. Cameron also refused to correct the deed. The refusals, however, raised just such a storm as was to have been expected from the circumstances. Williams knew his rights, pressed his demand for amicable redress, and threatened an immediate suit in chancery to correct the two papers if the refusal should be persisted in. Helm finally referred him to Cameron, who gave up the controversy, and quit-claimed the whole directly to Williams. I do not go over the evidence particularly. I speak of the result as it strikes the mind.

It is not denied that, in virtue of this quit-claim deed, the defendants have a perfect title, unless that deed be defeasible on some. of the technical objections which are urged against it. A prominent one is the adverse possession of Helm. What his possession was, in fact, is left quite equivocal by the proof. His constructive possession was nothing beyond the triangle, for his deed covered nothing more;' and I doubt, on the evidence, whether Williams’ tenants may not as well be said to have possessed the farm as Helm. To defeat a deed on the ground that that the grantor is out of possession, either an actual or constructive adverse possession in another should be clearly shown.

But with what propriety can adverse possession be predicated of Helm, after he had given Ms consent to abide the action of Cameron ? The statute of frauds has nothing to do with the parol admission of another’s right, when the admission is invoked to characterize a possession. The statute of maintenance was passed to prevent oppression by purchasing law smts against claimants persisting in their supposed titles. It was intended for then benefit, and they may waive it. (Kenneda v. Gardner, 4 Hill, 469.) In this case, that was most effectually done. Haight called on Helm in Williams’ behalf, to correct the mistake. To one who had copied the mortgage Mies from the registry of the deed, Helm was not so bold as to deny the mistake. Under a consciousness of truth and justice, though not prepared himself to act as he should, he does the same thing ; appoints his grantor, who had the legal title, to act for him, and the deed was given by the latter under a like consciousness. Some enquiry was made as to Williams paying a consideration, as if the deed was a fraud on Helm.' It would have been very strange for Cameron to have demanded a consideration, unless, like Helm, he was pinched in his circumstances. At best, there could have been no honesty in such a demand. The chancellor would not have waited for a consideration. Had they put Williams to his remedy by bill, the consideration would probably have come from the other side in the form of costs. The whole is no more than both Helm and Cameron were equitably bound to do, and would have been compelled to do by the court. On the whole, I have been unable to agree with the circuit judge that this deed was void by reason of adverse possession. I do not think there was even a question upon it for the jury. The language and conduct of Helm, seems to me so perfectly natural under the circumstances, that no twelve men could have doubted of the transaction as spoken of by Haight. But independently of that, I entertain no doubt that a deed from one out of possession, though the land may be holden by another under an adverse claim, yet, both being at the time under an equitable obligation to convey, stands entirely clear of the statute of maintenance. The whole was here the mere compromise of a- chancery claim. • The argument against the transaction would subject the chancellor to the imputation of maintenance had the parties stood out till a decree.

Nor have I been able to discover any ground for saying that the defendants, though they claimed under Helm, were estopped to use the deed from Cameron to Williams. They were in the condition of any person who finds that he is mistaken in supposing he had got a good title from his mortgagor—a title to a whole, when it is in fact only of one-third—and who takes a conveyance from the man in whom the title of the other two-thirds is outstanding. The claiming under Helm was mere talk founded on mistake. But take it that the mortgage lines ran round the Robin-farm; yet I am aware of no principle which inhibits a mortgagee from purchasing in an outstanding title, and enforcing it against his mortgagor. On the contrary, a defective title must often be cured.in this way, to avoid" a loss of the debt. Actual payments of prior incumbrances entitle the mortgagee, in equity, to hold till the mortgagor shall reimburse them; and in some cases, if the mortgagee can get them in by assignment, he superadds a legal title, paramount to that of his mortgagor and valid against an ejectment. The effect of the mortgagor’s repaying the money is merely to avoid the effect of the mortgage. If the mortgagee have acquired a paramount title, the act of payment will not enure as a purchase of it. Indeed, a tenant may obtain a title on which he can eject his landlord. All he is obliged to do, even' under this peculiar relation, is to surrender the possession. This dissolves the estoppel, and he may sue for the land. As between mortgagee and mortgagor, no such estoppel exists against the latter. The mortgagee is rather the landlord; the mortgagor being, in strict law, considered as a quasi tenant at will. Whether equity might not, in a proper case, consider the mortgagee as a trustee, and, on that ground, decree that he shall stand as a purchaser for the mortgagor’s benefit, on being reimbursed, is another question. At law, if the mortgagee acquire a good title from a third person, it is absolute. It is laid down generally in the books on mortgages, that the mortgagee is not estopped to question the title of the mortgagor. (1 Rand's Pow. 212; Coote, 355.) It is not necessary to say that he can set up an outstanding title with which he is not connected, either before or after the law day. I suppose he can not. Under our decisions, the mortgagee is at no time looked upon as having exactly the legal title. It may, at any time previous to the foreclosure, be divested by mere payment or even tender. He holds a pledge; (Edwards v. The Farm. Fire Ins. and Loan Co. ut supra;) and a pledgee is bound, in general, to surrender the subject, on payment, as a tenant is bound to surrender to his landlord at the expiration of the term. So far it may be said the mortgagee is estopped; but if to save his title, he be obliged to buy of another, the rule is different. If the mortgagor refuse to interfere and obtain the title himself, what right has he to complain ? If he lose his property, it is his own fault; and if the mortgagee obtain it for little or nothing beyond his trouble, the case is not altered.

But again ; in the view I have taken of the deed from Cameron to Helm, the latter could never have recovered the premises in question. ,The lines in his deed did not comprehend them; and of course his devisee has shown no title or possession that could ever have operated against Cameron. The name of his devisee must be considered the same as if stricken from the declaration ; and then the question stands between the title of ,Cameron and that of Williams to whom he conveyed. Suppose Helm was in adverse possession; that gave him no right whatever as against Cameron. Then, as between the only plaintiff left and the defendants, what right has he to recover 1 His devisor conveyed by quit claim deed to the grantor of these very defendants ; and however void that might have been in respect to Helm, whom I am now supposing to have been in adversely at the time, it is not (for Cameron’s devisee to claim against the deed, in a suit between him and the defendants. A recovery by him in a suit against Helm or any one claiming under him, would have enured to the benefit of the defendants. In Livingston v. Proseus, (2 Hill, 526,) Mr. Justice Bronson shows very clearly that though a deed of lands held adversely be void as against the one thus holding and those subsequently coming in under him, yet as between the grantor and grantee and all persons except the adverse holder, or those standing in his place, it is good.

My conclusion is that, although the main reliance of the defendants—the mortgage—failed, yet several grounds remain, on either of which the verdict is sustainable, and should not be disturbed.

New trial denied. 
      
      
         See per Cowen, J. in Deyo v. Van Valkenburgh, (ante, p. 246.)
     