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Cramer v. Benton.

and Blackmar to the plaintiff, in March 1861. Blackmar's deed contains the usual covenant for quiet enjoyment and of general warranty. Whether the intermediate deeds contain such, or any, covenants does not appear.

The suit was commenced in July 1869. The deed of the defendant to Lewis J. Benton was one of the deeds whereby a partition was effected between the defendant and Lewis J., of certain premises which had descended to them as tenants in common. The defendant set up in his answer, and upon the trial, that by a mutual mistake of the parties to his conveyance, it was made by its language to embrace the premises in controversy, without the knowledge and against the intention of both parties. That such mistake existed, the evidence tended strongly to show, and it also tended to show that the premises so included by mistake had been in the occupation of the defendant, under color of title, ever since the execution of the converance in which the mistake occurred; and had the case been put wholly upon the ground of a practical location and adverse possession for a period of more than twenty years, a verdict, sustaining such possession might have been satisfactory.

The alleged mistake would probably be sufficient color of title. The counsel for the plaintiff is in error in supposing that a grantor cannot hold adversely to his grantee. (Jackson v. Stiles, 1 Wend. 103.) The court at nisi prius, however, ruled that the defendant might recover on the mere ground that there was a mistake in the deed; that it was not intended to embrace the premises in controversy ; thus giving to the defendant the effect of a reformation of his deed in equity, on the ground that the facts referred to constituted an equitable defense. Though the general exception to the charge might not have been sufficient to raise the question, yet we think the point was fairly and fully presented on the motion to exclude the evidence, on the opening of the counsel for the defendant,

Cramer u. Benton.

and in the ruling thereon and the exception. Indeed, at that stage of the case, the court distinctly declared that there was no defense of adverse possession, and the trial proceeded for the mere purpose of establishing what was called the equitable defense.

There is difficulty, doubtless, in many instances, in harmonizing the principle of equitable defenses to actions at law, with our modes of trial and practice. The inquiry, however, which first presses upon our attention in this case, is, what constitutes an equitable defense?

The Code provides that the defendant may set forth as many defences and counter-claims as he may have, whether they be such as have been heretofore denominated legal or equitable, or both. This seems to have been construed to embrace equitable causes of action, affecting the equitable right of the plaintiff to enforce his legal cause of action; and probably such was the intention of the provision referred to. In this enlarged sense, an equitable defense or counter-claim to a legal cause of action, can mean nothing less than such a state of facts and parties as would induce a court of equity, in the exercise of its general jurisdiction, to interfere and restrain the prosecution of the action at law.

Parol evidence is clearly inadmissible, both at law and in equity, for the mere purpose of contradicting or varying the legal effect of a deed. (Stevens v. Cooper, 1 John. Ch. 429.) And it is only in cases where the deed, by fraud or accident, has a different effect from what was intended, that a court of equity interferes to give relief. To constitute a defense to an action of ejectment on the ground that the language and legal effect of the deed differs essentially from the intent of the parties, a case must be presented which would induce a court of equity to interpose and reform the defective instrument; not that it is absolutely necessary, in such a case, that a judgment reforming the instrument should be pronounced, if the deVOL. LX


Cramer •. Benton.

69 226 6 127 89a 129

fendant is content to waive, or does not demand, such full relief. For the judgment that he recovers in the action is giving him the full effect, so far as the title to the premises in controversy is concerned, of a reformation of the deed. It is manifest, however, that the court, before rendering such a judgment, should have before it the same facts and parties as would enable it to pronounce a decree for reformation.

Now in the case at bar, there was, so far as the case discloses, an insuperable objection to relief in equity against the legal effect of the deed in question. That deed was executed in November, 1846, more than twenty years before the commencement of this action, in which, for the first time, the defendant, in any action or judicial proceeding, presented his equitable claim to have his deed reformed and its legal effect varied. The right to demand relief in such a case is barred by statute at the expiration of ten years from the time when the cause of action shall have accrued. There is no reason to suppose that the legislature intended, by permitting equitable defenses and counter-claims to be set up in defense to actions at law, to abrogate the statute of limitations as to such cases. The same policy which prohibits the commencement of an action upon such a claim would seem to be equally applicable to the use of it as a defense.

The plaintiff claims title under a deed with warranty from Blackmar. It is essential to the security of the plain tiff that Blackmar should be a party to this action, so as to be bound by any judgment which is to limit and impair the operation of his deed, and to declare that the plaintiff did not by that deed acquire title to a portion of the land purporting to be conveyed by it. A court of equity only gives relief in cases where all the parties whose rights are to be affected, or who have a direct in'terest in the question to be determined, are before it; and doubtless in such a case as the present, a court of equity

Cramer v. Benton.

would not attempt to make a decree altering the legal effect of the original conveyance by the defendant, except the other parties to that conveyance, as well as the subsequent purchasers for value, who have conveyed with warranty, were before it.

Construing the expressions of the Code which allow equitable defenses or counter-claims to actions at law in their most enlarged sense, we think they must at least be confined to those cases in which a court of equity, if its jurisdiction were invoked by action, would restrain or limit the suit at law, and grant equitable relief against it. If we go beyond this, we are setting up, not an equitable defense, but some hybrid which has no name, and is no defense either at law or in equity. It is true that in Dobson v. Pearce, (2 Kern. 165,) a new trial was ordered in a case where the defendant set up and offered to prove a mistake in his deed, though his grantee was not a party to the suit; but the question of proper parties was not discussed or alluded to. The refusal to receive the evidence had been placed upon the sole ground that no equitable defense was admissible in an action of ejectment, and the prevailing opinion in the Court of Appeals expressly disclaims any attempt to decide whether the defendant “did or did not make out, by his offers, such an equitable defense, because if the offer was defective, under the distinct ruling of the court, no alteration of its terms or substance could have availed him.” And in a similar case, (Phillips v. Gorham, 17 N. Y. 270,) the Court of Appeals said if there was any defect of parties, or if the defendant was entitled to any restitution, he should have presented his claim at the trial, and it would have been, as we must presume, properly disposed of. In this case the very delicate and carefully guarded jurisdiction of a court of equity to reform a deed seems to have been entirely committed for its exercise to the jury. But whether such a disposition of it was proper, does not

The People v. Hatch.

directly arise, as we are of opinion that the defendant was not entitled in the case to the judgment of a court of equity in his favor; and we think that when a defendant sets up and seeks an adjudication in his favor, upon an equitable defense or counter-claim, he is, pro hac vice, in a court of equity, and must rely upon its principles to maintain his claims.

A new trial should be granted, with costs to abide the event.

(Fourth DEPARTMENT, GENERAL Term, at Buffalo, June 5, 1871. Mullin, P.J., and Johnson and Talcott, Justices.)

THE PEOPLE, ex rel. Oliver M. Gilpatrick, vs. W. Hatch,

County Judge of Allegany County.

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The expenses of actions commenced or defended by the trustees of a school

district, without a previous resolution of the district, and for which expenses, notwithstanding the want of a previous resolution, an assessment may be made upon the district by a vote of the inhabitants at a district meeting, or on appeal from their refusal, to the county judge, under sections 9 and 10 of title 13 of the act of 1864, "to revise and consolidate the general acts relating to public instruction," do not embrace penalties, which are expressly

excluded from the operation of section 8. It is only cases arising under section 8, which the county judge may review on

appeal taken and heard as provided in sections 9 and 10. Hence an appeal does not lie to the county judge from the refusal of a school

district meeting to vote a tax to reimburse a trustee for the costs and expenses of an action brought by him, against a pupil, to recover the penalty imposed by the 3d section of said title, for disturbing the school.


TERTIORARI to the county judge of the county of


Omer Olney, for the relator.

That the county judge erred in dismissing the appeal is evident, for the following reasons:

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