As I cannot concur with my brethren in this case, I will briefly give the reasons for my dissent. *Page 535
No mistake is alleged in the contracts, and no reformation of them is claimed. And under no allegations or proof could the contracts be reformed, as a cause of action, for such purpose, would be barred by the statute of limitations.
If, as claimed by the plaintiff in his complaint, and by his counsel on the argument before us, the deed was given in pursuance and in fulfillment of the contracts, then there can be no reformation of the deed, as it is in precise conformity to the contracts. If the two contracts of December 7th, 1846, are construed together, they must be read as if embodied in one; and the timber is not reserved, and the contract does not provide for any reservation in the deed. The vendees were to get out certain lumber upon shares, and were to pay four dollars per acre besides. The contract in reference to the lumber was a binding contract, and, if performed as the parties contemplated, it would be fully performed before the deed was required to be given; and such was manifestly the intention of the parties, and hence, no provision was made for any reservation in the deed. The deed was given without any mention of the lumber, and hence, the only claim the vendor could thereafter have, upon the lumber contract, was to sue for damages on account of its non-performance.
The only contract the defendant ever made or intended to make, as found by the referee, is that which is embodied in the deed. He never intended or was willing to take a deed with any reservation in it. What right, then, has a Court of Equity to reform the deed, so as to give him such a deed as he was never bound to take? There was never a time when, by action for specific performance, he could have been compelled to take a deed with a reservation, and the court has no right to compel him to take such a deed by the reformation of the one he did take.
If, by fraud, or mistake on his part, the plaintiff was induced to give this deed, the only relief he could have was to set aside the deed; and to obtain this relief, it was his duty, on the discovery of the fraud or mistake, to proceed promptly, and not ratify the deed by taking the money on the note *Page 536 given for the purchase price, after he discovered the mistake or fraud.
As I understand the opinion in which my brethren have concurred, it sustains the relief granted to the plaintiff, upon the ground of fraud, and yet the complaint does not in any way intimate even that the defendant was guilty of any fraud, nor does it allege that the defendant used any artifices to procure the deed to be drawn with the reservation omitted, or that he knew it was omitted. The charge of fraud should have been distinctly made in the complaint, so that the defendant could have taken issue upon it.
And it does not appear that any claim was made, at the trial, that the defendant was guilty of fraud, and the case was manifestly not tried upon any such theory. The judge at Special Term did not put his decision upon the ground of fraud. If he had, he would certainly have decided against the plaintiff, under his finding as to the statute of limitations, as follows: "That within a month after the execution of said deed, the plaintiff discovered said mistake, and shortly thereafter applied to the defendant to correct the same, which he neglected and refused to do; but proceeded to cut large quantities of said timber and appropriate the same to his own use; that the cause of action for which this suit is brought has not accrued to the plaintiff within six years before the commencement of this suit."
The learned judge evidently proceeded and granted relief upon the ground that the scrivener made a mistake in drawing the deed, and this was the ground upon which the General Term placed its decision of affirmance. The cause of action for the mistake was not barred by the statute of limitations, because the action was commenced within ten years from the time the alleged mistake occurred.
A cause of action, for such a fraud as is now alleged in this case, is deemed to accrue, when the aggrieved party discovers the facts constituting the fraud, and it is barred in six years from that time. (Code, § 91.) All the fraud, if any, that was perpetrated in this case was in procuring and taking the *Page 537 deed, without the reservation, and this was discovered, according to the finding of the judge, more than nine years before the suit was commenced, and hence I cannot be mistaken in saying that relief was granted at Special Term upon the ground of mistake alone, and not of fraud.
And still further, the counsel for respondent, in his argument before us, did not claim to sustain the judgment below upon the ground of fraud, but upon the ground of mistake alone.
Hence, under all the circumstances, I cannot consent to uphold this judgment, or any part of it, upon the ground of fraud, against the decisions of both courts below, the claims of plaintiff's counsel, and the explicit finding of the judge, at Special Term, that the cause of action for fraud was barred by the Statute of limitations. It was the duty of the plaintiff to show that he discovered the fraud within six years before the commencement of the suit, and there can be no pretence that he gave any evidence to show this.
I concur with my brethren in holding, that in any view of the case, the plaintiff could recover only for timber cut within six years before the suit was commenced.
For affirmance, as modified, LOTT, Ch. C., and HUNT and LEONARD, CC.
For reversal, EARL, C. GRAY, C., not voting.
Judgment affirmed, without costs to either party in the Court of Appeals, provided the plaintiff, within thirty days after the entry of this order, serves on the defendant's attorney a stipulation, reducing the judgment $2,407.45 and interest from the date of the judgment, April 6, 1863. If such stipulation be not served, then the judgment is reversed and a new trial ordered, costs to abide the event. *Page 538