
    BUTLER v. CLARK et al.
    (Supreme Court, General Term, First Department.
    December 16, 1892.)
    1. Reformation—Sheriff’s Deed. A clerical error in a sheriff’s deed of the distributive share of the execution debtor in an improved city lot, which deed locates the lot as 151 instead of 181 feet distant from a certain street, will be reformed in a court of equity, where the deed otherwise accurately describes the lot by metes and bounds, designates it by its street number, and recites that it is the same lot of which the judgment debtor’s ancestor died seised, and the evidence shows that such ancestor never owned any other property on that street; since Code Civil Proc. § 1435, requires only common certainty in the description of real property on a sheriff’s sale under execution.
    2. Same—Parties—Person Claiming under Sheriff’s Deed. The fact that plaintiff was not a party to the sheriff’s deed, but claims under a deed from the grantee therein, will not defeat his right to a reformation.
    8. Same—Sheriff Executing Deed—Expiration of Term. The person who executed the deed as sheriff, but whose term has since expired, is not a necessary party to the action, as no act or deed of his is necessary to complete the reformation. Van’Brunt, P. J., dissenting.
    
      4. Same—Present Incumbent of Sheriff’s Office. The present incumbent of the sheriff’s office is properly made a party to the action, where a portion of the relief sought by plaintiff is to have declared void a subsequent execution sale of the ' same property under another judgment against the same judgment debtor, and to restrain the sheriff from executing any certificate of sale or deed based on such sale.
    5. Same—Judgment Debtor. The main object of the action being the reformation of the sheriff’s deed, the judgment debtor, through the purchase of whose interest at the execution sale plaintiff claims title, is a proper and necessary party, so that his rights in the premises may be ascertained and protected.
    6. Same—Claimant under Subsequent Sheriff’s Deed. The husband of the ancestor of the judgment debtor, who has been made a party to the action as tenant by the curtesy and as administrator of her estate, is also properly made a party in his individual capacity, where he claims an interest in the premises as a purchaser at another sheriff’s sale under execution against the judgment debtor, and a sheriff’s deed therev under.
    7. Trial—Opening Case—Additional Evidence. On the submission of the cause with plaintiff’s and defendant’s proposed findings, and before rendering final decision, the special term has a discretionary power to reopen the case, on notice to the parties, for the purpose of receiving additional evidence which will put it in possession .of all the facts, and enable it to adjust and settle the rights of the parties as justice and equity may require.
    Appeal from special term, New York county.
    Action by Edwin W. Butler against Garrett D. Clark, individually, and as administrator, etc., of Sarah Clark, deceased, Edwin Clark, Jessie Fremont Clark, and James A. Flack, as sheriff of the city and county of New York, for the reformation of a sheriff’s deed executed by Hugh J. Grant, and for other relief. From a judgment in plaintiff’s favor, defendants appeal. Affirmed.
    It appears from pages 49 and 50 of the printed case on appeal that upon the final submission of the cause with the plaintiff’s and defendants’ proposed findings, and before the rendering of the final decision which forms part of the judgment roll herein, the case was reopened without consent of attorneys for defend■ants, (appellants,) but upon notice to them and against their objection and exception; and there were received in evidence a printer’s affidavit of publication of the notice of tbe execution sale, and duplicate sheriff’s certificates of said sale, one of which was filed in the office of the clerk of the city and county of New York the 13th day of December, 1887, and the other of which is annexed to the decision which forms part of the judgment roll herein.
    Argued before VAN BRUNT, P. J., and O’BRIEN and LAWRENCE, JJ.
    Arnoux, Ritch & Woodford, (Wm. H. Arnoux, of counsel,) for appellants.
    A sheriff's deed, after sale on execution, cannot be varied in any respect by reformation if it follows the notice and certificate of sale. Clarke v. Miller, 18 Barb. 269; Laub v. Buckmiller, 17 N. Y. 620, 625; Clendening v. Ohl, 118 Ind. 46, 20 N. E. Rep. 639; Rogers v. Abbott, 37 Ind. 138; Mahan v. Reeve, 6 Blackf. 215; Dickey v. Beatty, 14 Ohio St. 389; Ward v. Brewer. 19 Ill. 291; Puterbaugh v. Elliott, 22 Ill. 157; Mason v. White, 11 Barb. 173.
    Henry P. Starbuck, for respondent.
   LAWRENCE, J.

This action was brought by the above-named respondent, Edwin W. Butler, as plaintiff, to obtain, as against the above-named appellants, Garrett D. Clark, 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 of 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, seised 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 curtesy. On the 25th of February, 1885, Garrett D. Clark, the husband, was appointed the administrator of the estate of Sarah E. Clark. On the 2d 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 F#emont 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 M. 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 151 feet, instead of 181 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 seised on the 8th day of February, 1885, and which are known as ‘Number 216 West 43d 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 street 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 151 feet west from Seventh avenue, but that the point on the south side of the street lying at that distance west from the avenue fell within a lot 17 feet wide, 4 feet from one side and 13 feet from the other, on which stood a house of which the street number was 212, and which was built in 1836; that there was no other lot 19 feet wide on the block than No. 216; that the nearest in width of the narrower lots was 17 feet wide, and the nearest of the wider lots 20 feet, the latter being 200 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 M. 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 151 feet from the corner, instead of 181 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 premisesNo. 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 Civil Proc. § 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. 523:

“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 Trust Co. v. Eno, 21 Abb. N. C. 220; 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 theland intended to be conveyed, nothingbut 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 situate between such line and creek. Nelson, C. 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 Jackson v. Marsh, 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 quam pereat.”

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 43d Street,” of which Sarah Clark died seised on the 8th of February, 1885. The error of locating the premises as commencing at a point 151 feet westerly, instead of 181 feet westerly, from the comer formed by the intersection of the southerly side of Forty-Third street and the westerly side of 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 á 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 necéssary 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. Barb. Parties, p. 753, 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 positioú 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 tbe defendant Edwin Clark had on the 18th day of September, 1879, in 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 aré 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 paroi 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 between man and man deeds may be explained and reformed, by reason either of 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. Delancey, 13 Johns. 539, 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 Stirling in the county of Ulster, it was held to be void for uncertainty. hTo 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.

VAN BRUNT, P. J.

I dissent. I am of the opinion that Sheriff Grant was a necessary party to the "action. I do not see what authority the court had to alter an instrument executed by a person, without giving him an opportunity to be heard.

O’BRIEN, J.

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.  