In this case the appellee claims at the outset, and as conclusive of the question before us, that the court below has decided, as a question of fact, that no mistake occurred between the parties to the original deed which the plaintiff seeks to have reformed, but that it accurately expresses the contract which was made and correctly describes the land which was sold.
Is this claim well founded? The finding states that in 1872 the defendant sold to one Riggs a piece of land which he described and bounded in the deed as follows: — "Northerly on land of the heirs of Mrs. Ann O'Connor, one hundred feet; easterly on highway called North Main street, thirty-three feet; southerly on grantor, one hundred and sixteen feet and ten inches; westerly on grantor, thirty feet two and a quarter inches;" and the deed contained the usual covenants of warranty and seisin.
At the time of the purchase both Barnes and Riggs went upon the land, and Barnes then pointed out four stakes *Page 183 which he had previously placed at the comers, one at each corner, as designating the boundaries of the lot. Both supposed that the lot described in the deed and the lot staked out were identical, and that the lines indicated by the stakes correctly designated the boundaries of the piece of land purchased. There were no buildings on the land, and no fence marked any of the boundaries.
Barnes and Riggs, and Butler, the plaintiff, who afterwards purchased the land of Riggs, all supposed that the lot staked out correctly designated the land described in the deeds from Barnes to Riggs and from Riggs to Butler, and that the northerly line of the lot indicated by the stakes correctly marked the boundary line on the land of the heirs of Mrs. Ann O'Connor.
The court finds that "the land actually sold and conveyed by Barnes to Riggs, and by Riggs sold and conveyed to the plaintiff, was the piece as described in their deeds; and that all three supposed the land described in the deeds was identical with the lot staked out by Barnes. But Barnes did not undertake to sell and convey to Riggs any other land than a piece bounded northerly on the land of the heirs of Mrs. Ann O'Connor, and extending southerly on North Main street from the line of the land of Mrs. O'Connor thirty-three feet; and Riggs sold to the plaintiff the same land, having the same northerly line and the same frontage on North Main street. Barnes had attempted to locate such a piece by placing stakes at its corners, but he had mistaken the correct northerly line. Butler had occupied the lot staked out, supposing it to be the land described in his deed. The decision of the court had ejected him from a portion of the land he was occupying, but not from any part of the land described in his deed. He has lost no land which he actually bought of Riggs. The substance of the whole matter is that Barnes, Riggs, and Butler, all were mistaken as to the correct location of the northerly line of the piece of land bought and sold by them."
From this finding it is evident that the court did not decide, as matter either of law or of fact, that no mistake occurred *Page 184 between the parties to the original deed. A mistake is clearly stated, namely, "that both parties supposed that the lot described in the deed and the lot staked out were identical, and that the lines indicated by the stakes correctly designated the boundaries of the piece of land purchased." That is to say, both parties supposed that the deed accurately described the lot which was staked out and which the defendant pointed out as the subject of the sale. This supposition was incorrect. The deed did not accurately describe the northern boundary of the lot so designated and pointed out by the grantor.
Here the mistake arose. This was the mistake. The reasoning of the court in coming to its conclusion seems to have been substantially this: — The line pointed out as the correct line for the northern boundary, when the sale was made, was indicated by two stakes; the parties supposed that the line so indicated was identical with the O'Connor line and would be correctly described by bounding the lot sold northerly on land of the heirs of Mrs. O'Connor. The deed did bound the lot northerly on the land of said heirs; therefore I find that the lot actually sold was the piece described in the deed and not the piece pointed out and contained within the four stakes, and that the defendant did not undertake to sell and convey to Riggs any other land than a piece bounded northerly on the land of the heirs of Mrs. O'Connor.
The conclusion is manifestly a conclusion of law based upon the idea that the description of the boundaries in the deed must prevail over the boundaries actually pointed out upon the premises, and that the parties must be taken to have intended to contract according to the boundaries named in the deed, although they were mutually mistaken in supposing these were identical with the boundaries pointed out as above stated.
The claim which the court overruled, as stated in the finding, was the claim of the plaintiff "that, as matter of law, the pointing out by the defendant to his grantee, while the negotiations were in progress, of a lot exactly located and *Page 185 staked, which lot all the parties supposed to be the lot which was to be sold and conveyed, and the mutual mistake between them by which they gave and received the deeds as correctly describing the staked lot, entitled the plaintiff to a reformation of the deed so as to make it describe the staked lot, and to damages upon the covenants as reformed." In overruling this claim the court manifestly decided that, upon the facts stated, the law was so that the plaintiff was not entitled to the relief sought. Was this decision correct? That is the question now presented. As between the original parties would the grantor have been entitled to a reformation of his deed?
The mistake which the parties made was, as we have seen, that both supposed that the lot described in the deed and the lot staked out were identical. Both supposed that the description in the deed covered the land which was staked off and had been pointed out by the defendant as the lot sold. Notwithstanding this the court held that the land actually sold and conveyed was the piece described in the deed. That it was the piece conveyed by the terms of the deed is self-evident. That it was the piece sold is the conclusion upon which the court bases its refusal to reform the deed so as to embrace the lot contained between the lines of the stakes.
Notwithstanding, also, the mistake set forth, the court further finds that the defendant "did not undertake to sell and convey to Riggs any other land than a piece bounded northerly on the land of the heirs of Mrs. O'Connor." If by the word "undertake" the court means that, taking all the facts together, it must be held that the defendant only agreed to sell what the deed specifies, which is the natural meaning of the word as here used, then the issue is plainly before us.
It is clear that, while on the premises, the defendant undertook, both in the sense of offered and of agreed, to sell the lot he pointed out. The deed through the mistake of the parties did not express that undertaking. What would have prevented the grantee from having it so corrected that it should express the undertaking? *Page 186
It may be suggested that it is evident, that the defendant did not intend to sell any land which he did not own and therefore it was no mistake on his part to bound the land in the deed as he did. But the suggestion is specious. It has reference to the general intent which every honest man has within himself not to sell what is not his own. And yet he may fully intend, as between himself and another, to sell what he mistakenly supposes to be his own. It may, no doubt, be truly said, in one sense, that the grantor in this case did not intend to sell nor the grantee to buy, land belonging to the O'Connor heirs. At the same time it is true that the grantor intended to sell, and the grantee to buy, exactly the lot which was pointed out as for sale between the lines indicated by the stakes. The mistake was in supposing that the line between the north stakes was identical with the O'Connor line. If the grantor had known where that line was he would have made his stakes conform to it.
The bargain was made before the deed was executed. There was no misunderstanding as to the shape or dimensions of the land which was the actual subject of the sale. If the parties had united in fencing it after the execution and delivery of the deed, they would have built the fence from stake to stake.
The true statement of the case would be that the defendant had no intention of encroaching on the O'Connor land when he marked out for sale, and sold, a lot which, in fact, so encroached, though described in the deed, in accordance with the parties' belief, as bounded north on the O'Connor's heirs' land. If the court had found that, though the lot was pointed out, yet the parties intended to bound it north on the O'Connor land, whether the stakes correctly indicated that line or not, such finding would present a very different case and would have been conclusive. If, also, the question had arisen in a court of law as to what land the defendant had sold, then the deed, upon well known principles, would have been held to express the contract and to exclude parol testimony to vary or contradict its terms. The very reason for coming into a court of chancery is to avoid the application *Page 187 of those principles, and, in a proceeding brought for that purpose, to make the deed conform to the contract of which it purports to be the evidence. It seems to a majority of us that here was a mistake of such a nature as would have entitled the original grantee to have the deed reformed.Broadway v. Buxton, 43 Conn., 282, was an action upon the covenants of warranty and seisin. Buxton gave a deed of certain land to Broadway which bounded it "west by land of Calvin Hoyt, John L. C. Hoyt, Alva June and land of Ira Scofield." It appeared therefore from the deed that the lands of the four proprietors named extended along the entire length of the western boundary. Such however was not the case. One G. W. Young also owned land abutting for several rods on the west. After the execution of the deed the true divisional line between said Young's land and the land conveyed to Broadway was judicially ascertained and determined. Broadway claimed that by such line he was dispossessed and evicted of a strip of land which was covered by the deed of Buxton to him, and that therefore Buxton was liable on the covenants in his deed. To support this claim he offered parol evidence that prior to completing the contract for purchasing the land, and prior to the giving of the deed, the parties went upon the premises, and Buxton pointed out a line of fence constructed partly of stone and partly of brush, running generally in a northerly and southerly direction, as being in the western boundary line of the land proposed to be conveyed. This line was in fact one or two rods westerly of the line established as the true divisional line between Young's land and the plaintiff's land. It was for the loss of that strip of land, consequent upon establishing the boundary line farther east than Broadway anticipated, that the action was brought. This court said: — "As this is an action at law on a sealed instrument, the intent of the parties must be gathered from the instrument itself, not from any parol evidence. * * * The western boundary of the land conveyed is the eastern line of the adjacent proprietors; those lands, by the express terms of the deed, being made the plaintiff's western boundary. *Page 188 No line of fence, no visible monuments, are referred to as boundaries, and to interpolate them as such, by parol, would clearly affect and vary the meaning of that instrument. Such a course is clearly inadmissible. If the plaintiff has been led into error, if he has been deceived or imposed upon by the representations of the defendant as to the western boundary of the land contracted for, and that it extended to a line of fence, pointed out, which would give him more land than his deed covers, an action on the covenants can afford no remedy; resort must be had to a court of equity to correct the deed and make it conform to the intent and agreement of the parties."
In May v. Adams, 58 Verm., 74, two tenants in common divided their land by deed of partition. There was a mutual mistake in the deed in that the words and figures "north 45 degrees 30 minutes west" did not correctly describe the line agreed on. The agreed line was recognized and understood by them to be the one described in the deed so long as they were the owners; and the parties to the suit purchased with a like understanding and also recognized it for several years. When the mistake was discovered a bill in chancery was brought by May for the reformation of the deeds so as to make them describe accurately the line originally agreed on. It was held that the mistake was remediable in equity, both as between the original owners and their grantees. The court says: — "With the deeds reformed, making the division line to follow the old fence, the defendant is secured in his title to all the land that he understood his deed included at the time of his purchase, and the orator is entitled to have the deeds of partition reformed as against the defendant so as to conform to the practical location of the division line as made by the Doanes (the original owners) and understood by the orator and defendant at the times of their respective purchases."
See also Bush v. Hicks, 60 N. York, 298;Beardsley v. Knight, 10 Verm., 185;Tabor v. Cilley, 53 id., 487; Wilcox v. Lucas, 121 Mass., 25; Allen v. McGaughey,31 Ark., 252; Calverley v. Williams, 1 Vesey Jr., 210; Frye on Specific *Page 189 Performance, § 501; 2 Pomeroy's Equity Jurisprudence, § 866.
For the purpose, then, of putting the original grantee, Riggs, in a position to recover for a breach of the covenants in the defendant's deed, it is clear, both upon principle and authority, that his deed might have been reformed and made, in terms and description, to cover the land pointed out and lying within the lines which connected the corner stakes. Making the deed describe the line pointed out as the boundary, could only result in exact justice between the parties to it.
In Johnson v. Taber, 10 N. York, 319, it was held that where the boundaries of lands are pointed out by the vendor to the purchaser, but, in the written contract of sale and in the deed executed in pursuance of it, the description is made, by mistake, to include lands not within such boundaries, the deed will be corrected, on the application of the vendor, so as to correspond with the boundaries thus pointed out; and that it is no answer to such application that the description in the contract and deed was made in accordance with the instructions of the vendor, where it appears that both he and the vendee believed the description to correspond with the boundaries.
There being, then, a mutual mistake in the deed, which would have entitled the original grantee to have it reformed, the purchaser from him brings this complaint. Is he entitled to the relief which he demands?
And first, irrespective of the facts in this case, can the claims therein made be properly joined in a single complaint? The plaintiff asks for the reformation of the deed, to make it state the true contract between the parties, and then, not a specific performance of the contract thus truly stated, but damages for the breach of covenants which the contract as amended will show that he is entitled to upon the facts of the case. Under the practice act, (Gen. Statutes, sec. 877,) all courts which are vested with jurisdiction both at law and in equity, may hereafter, to the full extent of their respective jurisdictions, administer legal and equitable *Page 190 remedies, in favor of either party, in one and the same suit, so that legal and equitable rights of the parties may be enforced and protected in one action.
The rules under said act, chapter two, section two, refer to "a complaint demanding specific equitable relief and also damages, as equitable relief, incident thereto; (as for the reformation of a policy of insurance and the payment of a loss under the same as reformed.)" Pomeroy, in his book on Remedies and Remedial Actions, sec. 78, treats of the provisions, in the several codes and practice acts, combining legal and equitable actions and defenses in the same suit. He says: — "Where a plaintiff is clothed with primary rights, both legal and equitable, growing out of the same cause of action or the same transaction, and is entitled to an equitable remedy and also to a further legal remedy based upon the supposition that the equitable relief is granted, and he sets forth in his complaint the facts which support each class of rights and which show that he is entitled to each kind of remedy, and demands a judgment awarding both species of relief, the action will be sustained to its full extent in the form adopted." This rule, he says, has been firmly established by the court of last resort in New York and is adopted in all the states with one or two exceptions.
He states several cases where it has been applied; among them, an action by the holder of the legal title to correct his title deed, to recover possession of the land according to the correction thus made, and to recover damages for withholding such possession; and an action by the grantor of land to correct his deed by the insertion of the exception of the growing timber, and to recover damages for trees, embraced in the exception, wrongfully cut by the grantee. The author further says: — "The court, instead of formally conferring the special equitable remedy and then proceeding to grant the ultimate legal remedy, may treat the former as though accomplished, and render a simple common law judgment embracing the final legal relief which was the real object of the action." See sec. 80.
It was a maxim of equity jurisprudence, before the statutory *Page 191 joinder of legal and equitable actions, that when the chancellor had once obtained jurisdiction he would do complete justice. But the limit of his power in that direction was not well defined. Certainly the spirit of our practice act, and of acts of a similar character, would enlarge such jurisdiction rather than restrict it. The application now is to a single court having both legal and equitable jurisdiction, and the intention of the law is to give the suitor full and complete relief, within certain well defined rules as to joinder of actions and parties, in a single action.
If it be suggested that, inasmuch as the defendant does not own the strip of land in question, a complaint for the reformation of the deed and a specific performance of the reformed contract would not lie, and therefore the court will refuse to reform the deed, we reply, that for that very reason — because he cannot obtain a specific performance — the plaintiff is entitled to the relief he is seeking. There is no other way to compel the defendant to pay for what, not owning, he sold. An action of covenant broken will not lie because, unreformed, the deed does not cover the land. If it cannot be corrected so as to make it include the land sold, then the grantee is remediless, and the protection expected from the covenant of warranty breaks down just when it is needed. As to the facts on this point, the finding shows that in 1873 Riggs, the original grantee, sold the land in question to the plaintiff and conveyed it by a deed, containing the usual covenants of warranty and seisin, in which it was bounded and described to all intents and purposes precisely as in the original deed. The stakes placed at the corners by the defendant were still standing, and both Riggs and the plaintiff supposed the land described in the deed was the lot designated by the stakes.
About the time of the purchase the plaintiff employed a surveyor to locate the boundaries of the described land, who reported that they were correctly designated by the stakes. In 1874 Butler erected a barn on the lot within the boundary line as indicated by the stakes. In 1886 Catharine R. Root, who had become the owner of the land described in the deeds *Page 192 as belonging to the heirs of Mrs. Ann O'Connor, brought an action against the plaintiff, claiming that his barn encroached upon her land. The court found upon the trial of the action the barn to be an encroachment, and also established the boundary line between the lands of said Root and the plaintiff, and it is found by the court below, in accordance with that decision, that the northerly line, as indicated by the stakes, had included in the plaintiff's lot a triangular piece of land belonging to said Root, six and one half inches wide at the front and running out to a point at the rear of the lot. By this decision the plaintiff was ejected from such triangular piece. The title of the plaintiff to the triangular piece and his right of occupancy had never been disputed until about the time the action of Root against Butler was commenced, and the plaintiff did not learn, until final judgment was rendered in that action, that the line of the land of Mrs. O'Connor's heirs and the northerly line of the lot staked out by the defendant were not identical. Riggs executed and delivered to the plaintiff an assignment of all his claim, right and cause of action against the defendant arising out of said sale and conveyance, and authorized him to bring suit in his own name.
These facts present the case of a grantee, in a deed containing the usual covenants of warranty and seisin, who has been evicted from a portion of the granted premises, seeking, first, to reform the deed, and second, to recover damages, not against his immediate grantor, but against a remote grantor who conveyed the premises to his grantor with the same covenants. It is familiar law that the covenants of seisin, and of a right to convey, and against encumbrances, are personal covenants, not running with the land or passing to the assignee; for, if false, there is a breach of them as soon as the deed is executed and they become choses inaction, which are not assignable at common law. But the covenant of warranty and the covenant for quiet enjoyment are prospective, and an eviction is necessary to constitute a breach of them. They are therefore in their nature real covenants. They run with the land conveyed, and descend to heirs, and *Page 193 vest in assignees. So long as the grantor has not a good title there is a continuing breach. In respect of them this court held, in Booth v. Starr,1 Conn., 246, that "every assignee may maintain an action against all or any of the prior warrantors till he has obtained satisfaction. This results from the nature of the covenant, for each covenantor covenants with the covenantee and his assigns, and as the lands are transferable it is reasonable that covenants annexed to them should be transferred." And (p. 249) "that the nature of the engagement of the first covenantor is to indemnify all the subsequent covenantees from all damage arising from a breach of the covenant."
The plaintiff, as assignee of the real covenants of the deed, has also a right of action against the defendant for the reformation of the deed, for the purpose of enabling him to take advantage of the breach of such covenants. An action for reformation may be brought not only by the original parties but by their privies in title. 1 Story's Eq. Jur., § 165. This court held in Bunnell v.Reed, 21 Conn., 586, that an execution creditor, to whom land had been set off, could sustain an action against his debtor's grantor for the correction of the deed conveying such land to the debtor, so that it might be made to include the land levied upon, as was intended by the parties thereto, but which by mistake it failed to do.
We have thus disposed of all the questions which it is necessary to consider in order to decide the case before us. There is nothing in the record which shows any such laches on the part of the plaintiff, in pursuing his remedies after his eviction, as would defeat his right to invoke the assistance of a court of equity, and the majority of the court think there is error in the judgment appealed from, and that a new trial should be granted, at which the Court of Common Pleas may reform the deed as herein indicated, and thereupon render judgment for damages for the breach of the covenants now in said deed contained.
*Page 194There is error and a new trial is granted.
In this opinion ANDREWS, C. J., and LOOMIS and TORRANCE, Js., concurred.