This action is reported to the Law Court for decision of “all questions of law and fact involved.” There is no limitation of the defense to any pleadings, and hence the court can give effect to any contention in defense which is supported by the evidence and could have been pleaded in the action. The action is a writ of entry or real action, and the plaintiff’s title and right of possession are apparently sustained by a foreclosed mortgage of the demanded land from the defendants themselves. The defendants contend, however, and only contend, (1) that the mortgage by its terms is subject to a prior mortgage now held by one of the defendants and which both claim under as the older and better title, and (2) that if the mortgage to the plaintiffs is not in terms subject to the prior mortgage it does not express in that particular what was intended by both mortgagors and mortgagees, viz: that it should be subject to the prior mortgage and hence it should now be held to be subject to that mortgage.
The first contention cannot- be sustained. The only mention of a prior mortgage in the mortgage deed to the plaintiffs is in the covenant of freedom from incumbrances as follows: “ they ” (the premises) “ are free of all incumbrances except a mortgage to the said Abbie R. Smith.” The granting clauses, the habendum, and *31the covenant of full warranty are unconditional and without exception and operate to convey all the title of each grantor without exception. The exception in the covenant of freedom from incumbrances does not limit the effect of the prior unconditional grant. Maker v. Lazell, 83 Maine, 562.
The second matter set up in defense, if true in fact, is not an available defense in this action even since the statute allowing equitable defenses to be pleaded in an action at law. it. S., ch. 84, sec. 17. True, the statute declares that the defendant may plead in defense “ any matter which would be ground for relief in equity,” but the context shows that the only relief to be granted is “ against the claims of the plaintiff,” that is, the claims made in the action. “ The statute does not go so far as to provide for the separate determination of a legal right and of a distinct, independent, equitable right in the same action at law, and then for setting off the judgment upon the equitable right against the judgment upon the legal right. The equitable matter to be pleaded in the action at law must be matter of defense to the plaintiff’s claim, not matter of set off, not matter constituting ground for relief in equity apart from and independent of the action at law.
In this action the plaintiffs set up only a legal right and prima facie sustain it by an effective deed of conveyance from the defendants themselves. Without some matter, legal, or equitable, to upset or avoid that deed, there is no defense to the action. The evidence does not disclose any such matter. The only claim made affecting the deed is that in drafting it there was omitted one provision the .parties intended to have inserted. The validity of the deed as it stands is not questioned, and its effect to vest title and right of possession in the plaintiffs is clear. It is a muniment of title and must be given effect according to its terms in any action, legal or equitable, until duly reformed so that its terms shall have a different effect.
The procedure to reform a written instrument by changing its language to such as the parties intended to use, or to change its effect to accord with their intention, has always been exclusively in equity, and necessarily in equity, in those jurisdictions where the distinction *32between legal and equitable procedure still prevails. Winnipiseogee Paper Co. v. Eaton, 64 N. H. 234. It is evident that any judgment at law though it might avoid the deed or refuse it effect, could not reform it. The nature of the right of reformation is such as to require for its enforcement the flexible decrees obtainable by suits in equity.
This right of reformation of a written instrument is not mere matter of defense to an action in which the instrument is set up as the basis or source of a right. It is an independent affirmative right arisiug as soon as the instrument is delivered. Being independent of any action at law and requiring decrees in equity for its enforcement, it should be enforced by a separate suit in equity and not interposed as an equitable defense to an action at law. In this case the sustainable claim of the defendants (if it should prove to be sustainable) is not that the deed is void, but only that in one particular its language fails to express an intention of the parties. If this be so, the deed is not to be declared void nor refused effect in an action at law, but is to be reformed so it can have the effect intended. For reasons above given such reformation can be effected only by suit and decrees in equity. The statute, R. S., ch. 84, sec. 17, does not go so far as to provide that it shall, or even may, be done in an action at law.
Nor can such reformation be effected under sec. 16 of the same statute, ch. 84, which. provides for the transformation of an action at law into a suit in equity “when it appears that the rights of the parties can be better determined and enforced by a judgment and degree in equity.” This provision applies only to the rights of the parties which are made the subject matter of the action at law, not to other and independent rights. In this action the only right in question is that of the plaintiffs, to the possession of the demanded land. That right, if it exists, is a pure legal right to be enforced by judgment and execution at law. Should the action be transformed into a suit in equity in order to have the deed reformed, the right of possession under the deed as reformed is still to be determined and enforced by judgment and execution at law. In Lewiston v. Gagne, 89 Maine, 396, begun and decided after the passage of the statute, (secs. 16 and 17) the action was at law upon a tax collector’s *33bond, and it was heard on report as in this ease. It appeared in evidence that the bond was intended to cover the year 1893, but by mistake had been written to cover the year 1894. The court said that the bond must be reformed by process in equity, unless the parties would agree to have the damages assessed as if the bond were written for the correct year.
Though we cannot consider in this action the question of how or whether the deed should be reformed, we think the defendants should have reasonable opportunity to present that question by suit in equity before judgment in this action. They should not be deprived of that opportunity because of this opinion that it could not be presented here. The statute is not so clear as to make the contrary opinion evidence of ignorance or carelessness. The report will therefore be discharged, and this action remitted to nisi prius to be continued for a reasonable time to enable the defendants to present by suit in equity their claim to have the deed reformed.
So ordered.