Gallup v. . Bernd

*374 Parker, J. The defendant purchased from plaintiff a farm, part of the consideration being secured by a bond and mortgage. Subsequently the bond and mortgage was satisfied, the defendant paying amount due less $1,364.98. He had agreed to pay 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 fbr 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. *375 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 commenced 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 applicable, but treated the suit as one in equity to recover a judgment 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 representations 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 undertook 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 Pah té a 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 delivered by Andrews, Oh. 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 exercised with great caution when invoked on the ground of mistake. 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. *376 In the case before us, the court has decreed an abatement equal to the balance of the purchase-price remaining unpaid. JSTow, 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.