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Cramer v. Benton.

of the equitable defense set up in his answer, and there. upon denied the motion. To which ruling and decision, allowing the defendant to give evidence of said equitable defense, as against the plaintiff, the plaintiff's counsel excepted.

The jury rendered a verdict in favor of the defendant; and the court ordered the exceptions to be heard, in the first instance, at the general term.

E. G. Lapham, for the plaintiff.

I. The learned justice erred in holding that the defendaut might prove his defense of a mistake in the deed executed by him, for the reason stated in the objection made to such defense. The case is not open to such defense against the plaintiff, who is a purchaser for value. The defendant knew of the alleged mistake long before the plaintiff made his purchase, and ought not, upon settled principles, to be allowed to set it up against the plaintiff. The act of leaving this mistake uncorrected until after the plaintiff purchased, is the same, in effect, as though the defendant, with full kuowledge of the mistake, had united in the deed to the plaintiff. The plaintiff has purchased and paid for the land described in the defendant's deed, and the defendant cannot be permitted to reduce the quantity of land, or to take away from the plaintiff a portion of what he has purchased, and for which he has paid; and that, too, without refunding, or offering to refund, the purchase price. It was the defendant's duty, ou discovering the mistake, to act promptly, and have it corrected. He could not lie by and allow the land to be conveyed to innocent purchasers, and then assert the mistake, to their prejudice. To allow the defendant to show the mistake here, is to set it up collaterally, and without the proper parties before the court. This cannot be done. (Pattison v. Hull, 9 Cowen, 747.) The principle is, that "he who is silent when conscience requires him to speak,

Cramer v. Benton.

shall be debarred from speaking when conscience requires him to be silent.” (44 Barb. 228.) As against a bona fide purchaser, a court of equity will not interfere on the ground of accident, (Story's Equity, $ 108 ;) or on the ground of mistake, (Id. 165;) or on the ground of fraud as to creditors. (Id. 381, 409, 434, 436, 631. Sugden on Vend, and Purch. 119, 479, 1st Am. ed.) If it shall be claimed that the possession of the defendant constituted any notice to the plaintiff, to defeat his right as a purchaser, we ansier, 1st. The court decided that his possession was not adverse, and such is the rule of law. 2d. When the plaintiff called on him, he did not dispute the title, but said he should fence it up; that he knew of the difficulty, and had, in his deeds, avoided it. This the defendant did not deny. 3d. A possession contrary to the description in a deep must be adverse, so as to bar an ejectment, to authorize parol evidence of the intention of the parties. (Emerick v. Kohler, 29 Barb. 165. Clark v. Baird, 5 Selden, 183, 304. Hubbell v. McCulloch, 47 Barb. 287.)

II. The court erred in admitting the evidence of the defendant and his brother, to prove by parol, the mistake; and the exceptions to the ruling were well taken. The rule of evidence on this subject has been held differently at different periods, in this State, and also in other States and in England. (Truscott v. Davis, 4 Barb. 495. i Phil. Ev. 119 and note 58, last ed. 1 Greenl. Ev. SS 383, 385.) As against a purchaser for value, it is submitted a grantor cannot be allowed to give evidence to impeach his deed. It was held that parol evidence of this character was not admissible, as early as Jackson ex dem. Putnam v. Bowen, (1 Caines, 358.)

III. The court erred in refusing to direct a verdict for the plaintiff. Taking the case of the defendant, as it is proven, he failed to establish a defense to this action, for the reason that it proves itself to be untrue. 1. It is claimed by the defense, that all the courses and distances

Cramer v. Benton.

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in the deed are correct, except the one course and distance of two chains and nine links, which should be left out; that when that is left out, the line will run around the bank of the pond at high water mark, according to the courses and distances given in the deed, and will exclude the land claimed by the plaintiff. 2. Now the defendant testifies that “ We never intended to alter the other lines. He (meaning Mr. Gillespie, the surveyor,) had no directions to alter the other lines, so that all the other courses and distances must be strictly followed out.” Lewis Peck, a witness sworn on the part of the defendant, and who surveyed these premises for the defendant, testifies, that in running the second course and distance, from the beginning point, he run north eighty-six and three-quarters degrees, west five chains and twelve links. That course and distance, as given in the field notes, and in the deeds, is north, eighty-eight degrees west, five chains and twelve links. The witness, Peck, testifies that had he run north, eighty-eight degrees west, five chains and twelve links, he could not have got around the pond at all. So that it will be seen at once, when the course and distance of two chains and nine links is left out, and they undertake to run around the pond by the remaining courses and distances, they cannot get around the poud without varying some of the other courses and distances, which they are not warranted in doing. We therefore say that the theory of the defense is inconsistent with the proof, and must fail; and that the court erred in not directing a verdict in favor of the plaintiff, under his request.

IV. The court erred in submitting to the jury the question as to whether there was an actual and practical line of partition between the defendant and his brother Lewis J., which differs from the description given in the plaintiff's deed. The verdict should be set aside, and a new trial granted.

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Cramer v. Benton.

S. K. Williams, for the defendant.

I. The twenty years and more, actual occupancy by the defendant of the premises in question, under an actual partition and claim of title, is a defense on the ground of adverse possession, under the statute of limitatious. (Code, $ 78. Jackson v. Long, 7 Wend. 170. Poor v. Horton, 15 Barb. 485. Hoyt v. Carter, 16 id. 212.

Clark v. Baird, 5 Seld. 183.)

II. The deed to the plaintiff, as against the defendant, is void under the statute against champerty, as to the land he held when the deed was given. (3 R. S. 972, § 6, 5th ed. 21 Wend. 99, 100. 9 id. 516. Jackson v. Demont, 9 John.

9 55. Jackson v. Oltz, 8 Wend. 440.) Every deed of lands is absolutely void, if the lands are in possession of a person claiming adverse title. (3 R. S. 30, $ 167, 5th ed. 2 id. 739, § 147, 2d ed. Cole v. Ervine, 6 Hill, 634.)

III. The manifest mistake in the partition between the defendant and his brother, constitutes a good equitable title in the defendant, to the land in dispute; though the deed from his brother failed to give him the legal title. 1. This equitable title is available as a defense, in this action, without asking for the affirmative relief of reforming the deeds. 2. That affirmative relief could not be had in this suit, because all the requisite parties are not before the court; a cross suit might have been commenced bringing in all the parties, and staying the proceedings in this suit until that could be brought to trial; but that seemed wholly uunecessary. 3. The circumstances, which would maintain a suit to reform the deed, set up as a mere defeuse to the ejectment in this action, will be available for that purpose between these parties. (Dobson v. Pearce, 2 Kern. 165, 166, 168. Crary v. Goodman, Id. 266. Phil. lips v. Gorham, 17 N. Y. 270. N. Y. Ice Co. v. N. W. Ins. Co., 23 id. 360.) 4. This equitable defense, coupled with a possession of over twenty years under the same, must be sufficient to protect the defendant against the claim of

Cramer v. Benton.

the plaintiff in this action. (Jackson v. Long, 7 Wend. 170, and cases cited under first and second points.)

IV. The above points are sufficient answer to the exception to the judge's admitting proof of the equitable defense set up in the answer; also to the exception to the judge's refusal to direct a verdict in favor of the plaintiff. He would have been justified, upon the undisputed facts of the case, in directing a verdict for the defendant on the grounds stated. 1. The exception to the admission of Lewis J. Benton as a witness, is answered by the Code, which allows all interested parties to be witnesses; besides, he was not called to impeach his own deed, but only to explain a mistake in it. 2. An exception was taken to the decision of the court allowing proof of the agreement for partition. If this had been excluded, the court would have excluded the whole defense; besides, no ground of objection to the question was stated; which renders it unavailable on review. (Fountain v. Pettee, 38 N. Y. 184; S. C., 6 Trans. App. 241.) No objection is made to the question which brought out the evidence. 3. As to the several objections to the questions where no ground is stated, the plaintiff cannot avail himself of them on a motion for a new trial. (See Fountain v. Pettee, supra, and cases there cited.) Besides, the several objections to the questions are trivial and frivolous. 5. The general exception to the charge of the court, at the end of it, cannot be sustained. (Cronk v. Canfield, 31 Barb. 171. Wilson v. N. Y. Central R. R. Co., 2 Trans. App. 398. 38 N. Y. 240. Id. 263. 2 Trans. App. 298. 2 Seld. 233. 1 Kern. 416. 5 Denio, 218.)

By the Court, TALCOTT, J. This is an action of eject

, Talcott ment. The premises in question were quitclaimed by the defendant to Lewis J. Benton, in November 1846. Lewis J. conveyed to Austin R. Howland, in November 1847. Howland conveyed to Abel T. Blackmar, in April 1850,

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