Blumberg v. Mauer

Ogden, J. This cause was before this court in 1869, and after a somewhat lengthy and able argument by counsel, in favor of and against the judgment, and a very careful and thorough investigation by the court, the cause was decided by a majority of the court then sitting. A motion for a rehearing was then prepared, but for some cause was not acted upon by the court, until the next term. The rehearing was asked for the reason, among others, that at the time of the decision, the Supreme Court, by a provision of the then existing Constitution of the State, was composed of five judges, and that this case was decided when but three Avere sitting on the bench, and that the decision was concurred in by but two of the judges, the third dissenting, and therefore it is claimed that the cause was not decided by a constitutional majority of the court. The application for a rehearing was granted, and the cause is again submitted for decision. On the trial in the lower court, a jury was waived, and the cause submitted on the law and the facts of the case, and therefore the case is now before this court for a final determination. Upon a careful examination of all the facts, aided by the able arguments and briefs of counsel, as well as the former opinion of a majority of this court then sitting, we have been unable to come to the same conclusion in regard to the law of the case as was arrived at on the former hearing. And while we fully indorse and approve the principles of law there enunciated, as correct legal maxims when applied to a proper state of facts, we are still unable to perceive the full force of their application to the case at bar. We are unable to free ourselves from an irresistible conviction that this suit Avas instituted against the Avrong party, which was plainly apparent from the pleadings, and was therefore the proper subject for demurrer. [6] There appears to be no question but that the appellant has sustained an injury, and is most clearly entitled to his remedy, and the only material question for decision in this case is, from whom is he entitled to that remedy ? Is it the party who was the direct cause and author of the injury, from whom the remedy must come? or has the injured party a right, in law or equity, to look to innocent third parties for the redress of his wrongs? In his dissenting opinion, delivered at the former decision of this case, Justice Lindsay very concisely states the facts of this ease, and, in our opinion, the law which should he applied to those facts, and we therefore take the liberty of extracting to some extent from that able opinion, and of adopting the same as the opinion of this court, after a careful examination of the facts, as well as the elementary authorities and decisions upon the law applicable to those facts. The facts of the case, so far as they are necessary to a proper understanding of this opinion, are simply these : A. Swift conveyed to appellant one hundred and eighty acres of land, to he taken from a certain portion of a nine hundred and sixty acre tract; hut in his deed, wherein he professes to convey that specific number of acres by actual survey, he includes only a small portion of his own land, and for the balance he runs over on the adjacent land of P. D. Smith. The land thus described and attempted to be conveyed-was actually surveyed, and the boundary lines plainly and distinctly marked out on the ground. In this conveyance there was obviously either fraud or mistake committed by the vendor, since he had no power or authority to convey any portion of the Smith tract. Subsequently Swift sold another one hundred and eighty acres to the appellee, defining the same by specific boundaries definitely marked upon the ground, which were produced also by actual survey, and which made one of the lines of appellant’s tract also one of the lines of appellee’s survey, and including within those distinctly marked boundaries, land belonging to the vendor only. There was no fraud or mistake in the sale to appellee. The vendor intended to sell, and had a right to sell, the identical land described in [7] appellee’s deed, and the appellee intended to, and did purchase that identical land. How, then, can appellee be affected by the fraud or mistake in appellant’s purchase, and how can appellee be made responsible for that fraud or mistake, practiced upon appellant by a third party % Justice Lindsay in his opinion very properly says : “ Mistake of facts is corrected by the rules and principles of “ equity. Because law and equity are blended in one system, “ there is neither an abrogation nor a modification of the prin- “ ciples of the one system or the other, by reason of the practi- “ cal application of each in the same cause of action. Each “ system has its limits and its boundaries, beyond which neither “ can go without transcending judicial authority, and eneroach- “ ing upon the province of the law-giver. It is said by undis- “ puted authority that ‘ in all cases of mistake in written instru- “ ‘ ments, courts of equity will interfere only between the origi- “ ‘ nal parties, or those claiming under them in privity.’ (Story’s Eq. Jurisprudence, Section 165.) ” There was no contract between appellant and appellee in regard to the land, and neither was privy to the other’s contract, and, so far as the record informs us, neither may have known of the other’s contract of purchase until the institution of this suit, and it is admitted that both were innocent purchasers, for a valuable consideration, without notice of any equities in favor of the other; and therefore, if either has suffered any wrong or injury by reason of the fraud or mistake of their vendor, he must look to that vendor for redress, and not to an innocent third party. It is true that appellant was an innocent purchaser, the same as appellee, but by the mistake he was deceived, and he must look to the author of that deception for his relief. Counsel seem to have fallen into the error of supposing that Swift, Blumberg, and Mauer were all parties to both conveyances, and that therefore each should be held responsible for the loss of the other; but we think the record authorizes no such conclusion. It is also claimed that the intention of the parties should form the rule for settling the legal liabilities of [8] each party. If wé adopt that rule, then certainly appellee cannot be held responsible, or made to suffer for appellant’s loss or injury, for it most clearly appears that appellee had no connection whatever with appellant’s purchase, and therefore could not have had any intention with regard to the same. The authorities mostly relied upon, for a reversal of this case, are decisions settling questions of disputed boundary, but we are unable to appreciate their application to the case at bar, as in this case there is no dispute about the boundary of either appellant or appellee, as, in the conveyance of both tracts, the boundaries were actually surveyed, and definitely marked upon the ground, and each party held the land by virtue of his deed only, and to the extent and in conformity with the boundaries set out in his deed only ; and if the title to the land described in the deed was not, at the time of the conveyance, in the vendor, or if the designated boundaries did not include the quantity of land attempted to be conveyed, or if there were any other defects in the deed, or the title to the land, the purchaser should have looked to his Vendor for the correction of the mistake, or for damages resulting therefrom. It is claimed that because the deed to appellant calls for a certain designated corner and line of a known survey, that call must govern all others. That might and would be true if no .actual survey had been made, but where the land had been def■initely and particularly surveyed off, and the corners and •courses plainly marked upon the ground, and where the rights of innocent parties have grown out of that survey, and are dependent upon those marked lines and corners, such innocent parties should not be, and in law or equity are not, bound to make good any error or mistake which may have accrued in the first survey, but the purchaser under that first survey must look to his vendor, to make good the title to the land thus erroneously surveyed, or, in case that be impossible, then for his damages, for attempting to convey land to which he had no title. A call for a known corner, and known and designated line, will control other calls in a grant, unless it clearly appear [9] that the parties actually made and established another corner, and run another line. We are of the opinion that there is no error in the judgment of the lower court, and it is affirmed. Affirmed.