Statement of case. himself of the fraud of the plaintiff in the sale is untenable. (Lamerson v. Marvin, 9 Barb. 9; Wright v. Delafield, 23 id. 498; Lewis v. McMillen, 41 id. 420; Whitney v. Lewis, 21 Wend. 131; Krumm v. Beach, 96 N. Y. 398, 407.) A vendor of real estate is guilty of a fraud if, knowing that he has no title to a portion of the lands sold, he willfully suppresses that fact from the purchaser. (Clark v. Baird, 9 N. Y. 183; Thomas v. Beebe, 25 id. 244; Stokes v. Johnson, 57 id. 673; Beardsley v. Dunthy, 69 id. 577.) The general jurisdiction of a court of equity to set aside or reform a contract on the ground of mistake includes executed as well as executory contracts. (Paine v. Upton, 87 N. Y. 327; Belknap v. Seeley, 14 id. 143.) The defendant may recoup against the claim of the plaintiff the damages which he sustained by reason of the failure of the title of the premises conveyed to him by the plaintiff. (Hunt v. Chapman, 51 N. Y. 555; Isham v. Davidson, 52 id. 237; Waring v. Somborn, 82 id. 604; Whitney v. Allaire, 4 Den. 554; 1 N. Y. 305; 96 id. 398.) There was sufficient eviction of the defendant from the two pieces which plaintiff conveyed to defendant, and included in the land described in the deed to make the 230 acres, and which plaintiff did not own at the time of the conveyance to make him liable on his covenant of warranty of quiet and peaceable possession to the defendant of the lands thus conveyed. (Shattuck v. Lamb, 65 N. Y. 499; Schriver v. Smith, 100 id. 471.) A court of equity will afford relief in a proper case whether it be upon the ground of mistake or fraud, or a combination of both. (Crowe v. Lewin, 95 N. Y. 423; Waring v. Somborn, 82 id. 604; Bloodgood v. Sears, 64 Barb. 71; Sheffield v. Hamlin, 26 Hun, 237.) In this case the defendant had a right to insist that there was a failure of consideration to the extent of the value of the property not received by him under the deed, and thereby diminish the claim of the plaintiff in this case. (6 Wait's Act. & Def. 582; Sawyer v. Chambers, 44 Barb. 42; McAllister v. Reap, 4 Wend. 485; Patterson v. Hulings, 10 Penn. St. 506; Blessing v. Miller, 102 id. 45.) PARKER, J. Opinion of the Court, per PARKER, J. The defendant purchased from plaintiff a farm, part of the consideration being secured by a bond and mortgage. to pay Subsequently the bond and mortgage was satisfied, the defendant paying amount due less $1,364.98. He had agreed all but $800, and to give his 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-hundredths 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. Opinion of the Court, per PARKER, J. In his reply to the counter-claim 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; plaintiff's discovery of the error in acreage occurred later than March 1, 1887, and this action was com、 menced 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 General Term assumed the six year limitation to be appli cable, but treated the suit as one in equity to recover a judg. ment 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 repre sentations 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 under. took 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, and a bond and mortgage given for a portion of the purchase-price before the mistake in the acreage recited in the deed was discovered by the grantee, and the court, in a carefully considered opinion deliv ered by ANDREWS, Ch. 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 exer cised with great caution when invoked on the ground of miss take. 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, Dissenting opinion, per FOLLETT, Ch. J. 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.) 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 to secure $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 laches on his part, he (defendant), paid and agreed to pay the plaintiff for 18,2% acres of land, which were not conveyed to him by the plaintiff." As a conclusion 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 fraudu lently, and that the word "false" in the decision is used in Dissenting opinion, per FOLLETT, Ch. J. 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. (McMichael 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; Dayv. Town of New Lots, 107 id. 148; 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 counter-claim is stated in the answer which, unfortunately, is barred by the Statute of Limitations. (Code C. P. § 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. All concur with PARKER, J., except FOLLETT, Ch. J., dissenting, and HAIGHT, J., not voting. |