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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 626 The plaintiff asks that a certain misdescription in his title deeds may be corrected, and that he may be awarded possession of the premises intended, according to their true boundaries, with damages for the alleged unlawful withholding. As the practice formerly stood, this would have been an incongruous complaint. But since the Code, "the distinction between actions at law and suits in equity, and the forms of all such actions and suits heretofore existing, are abolished." (§ 69.) The constitution, it is true, speaks of "equity" as distinguished from common "jurisdiction," and of "equity cases" as distinguished from "cases at law," and of cases entitled to "trial by jury" as distinguished from cases where that mode of trial was not "heretofore used." But then it provides, also, for the appointment of three commissioners, whose duty it should be, seemingly with no other limit except legislative "adoption," to "simplify, abridge and reform." I shall not, however, discuss the constitutionality of the Code. The point not having been raised, may be safely reserved for another occasion. I shall assume, as has been several times decided, that "legal and equitable relief may be asked for in one action," and that the *Page 627 plaintiff, claiming under a defective deed and showing sufficient grounds for its "reform," may have the same remedy as if he had brought two actions, one to reform the instrument and the other to enforce it as reformed.
The alleged mistake, in the present case, consisted of an error in one of the boundary lines. Three of the lines are without difficulty. The easterly line is one chain and twenty-five links along the road; its two termini being clearly indicated. The westerly boundary is parallel with the eastern, and of precisely the same length. The north boundary runs nearly due east and west, deviating only five degrees, and being exactly two chains in length. The south boundary is not given. It must, of course, run between the south termini of the other two; but its length not being stated, it may be either crooked or straight. As the contents, however, are specified (one-quarter of an acre), and as a straight line of two chains, at right angles, will make that exact quantity, the law, on the principle ut magis valeat quampereat, will presume a parallel straight line of the same dimensions as the northern boundary, or, in other words, a regular rectangular parallelogram in preference to an irregular figure; especially where the description, as in this case, relates to a small town lot on the road side, and not to an extensive farm.
The defendant, moreover, admits, for such is the effect of his demurrer, that the erroneous description "was intended to cover the premises" claimed, but insists, as matter of law, that the intention failed. He concedes, also, that the lot was part of the estate of the deceased Richard Morrison, and that it was in the town of Hamburgh and on the designated highway. In the absence of any proof or suggestion to the contrary, we must presume that the deceased owned no other lot in the town. We have, then, the case of a surrogate's deed, conveying "Richard Morrison's quarter acre lot" in a specified town. Such a description, even without the aid of the road, the posts, and the other particulars *Page 628 which are not open to doubt, would be sufficient of itself. (Dygert v. Pletts, 25 Wend., 402.)
The Supreme Court at general term, therefore, very properly overruled the defendant's demurrer, and as he declined availing himself of the liberty of putting in an answer, the judgment should be simply affirmed, with costs.
The court concurred in the result of the preceding opinions.
Judgment affirmed.
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