Albany City Savings Institution v. Burdick

Bockes, J.:

The exception to the ruling which denied to the defendant the affirmative of the issue is not urged on this appeal. Such ruling is obviously without materiality, in case the subsequent decision that the party was without defence on her pleading was sound in law. The latter ruling presents the only question in this case.

The conveyance of tlie mortgaged premises by Martin, the mortgagor, to Mrs. Burdick was declared in the deed to be subject to the lien of the mortgage in suit; and, as was also stated therein, she assumed and agreed to pay the mortgage debt. By force of this provision in the deed, Mrs. Burdick, the grantee,. became personally liable to the mortgagee, and this liability the latter sought to enforce. To countervail and defeat this claim made by the mortgagee, Mrs. Burdick set up in her answer (1) that she did not agree with Martin to assume and pay the mortgage ; (2) that the clause in that regard was inserted in the deed without her knowledge or consent; (3) that although she accepted the deed and caused it to be recorded, yet she had no knowledge that it contained this provision until the commencement of this action ; and further, that Martin caused the clause to be inserted for the purpose of charging her personally, knowing that it was not in accordance with the bargain and sale made between tbe parties ; and for these reasons she denied ail liability on account of said provision in the deed, and asked as affirmative relief that it be reformed by striking out or canceling that clause. The learned judge held that the facts set up in the answer were unavailing as a defence or as ground for reforming the deed, for two reasons : (1) because if admitted to be true, as stated, they did not show that, the clause was inserted through mistake of the parties, or through fraud ; and (2) because Mrs. Burdick had not presented an issue to Martin by cross-bill or otherwise.

Now the deed contained what was equivalent in law to a covenant on the part of Mrs. Burdick to pay the mortgage debt. (Douglass v. Wells, 18 Hun, 88, and cases there cited.) So long as this covenant remained in force she was bound by it, and she could get relief from it only by showing that the clause was inserted in the deed through mistake, or by the fraud of the grantor. The presumption is in favor of the writing, and this presumption can be overcome only on the clearest and most satisfactory evidence of mistake or fraud. The facts stated in the answer fail to show that the clause objected to was inserted by mistake. In order to reform the deed for this reason, it must be shown that the mistake was a mutual one. It must be made to appear that the clause was inserted contrary to the intent of both parties, and under a mutual misapprehension. (Nevius v. Dunlap, 33 N. Y., 676; Welles v. Yates, 44 id., 525; Jackson v. Andrews, 59 id., 244; Mead v. Insurance Co., 64 id., 453; Moran v. McLarty, 11 Hun, 66; Ford v. Joyce, 20 Alb. Law Jour., 493-494.) There is nothing in the defendant’s answer indicating that the provision was inserted through any misconception on Martin’s part; on the contrary, it is there averred that the latter, at the time the deed''was delivered, knew that the deed contained this clause; and more, that it was inserted by his direction and for the purpose of charging Mrs. Burdick with personal liability. The facts stated in the answer do not therefore make a case of mutual mistake authorizing a reformation of the deed on that ground.

Nor is a case stated authorizing the relief demanded on the ground of fraud. The only substantial ground of alleged fraud is that Martin inserted the liability clause, or caused it to be inserted, contrary to the agreement, and delivered it without informing Mrs. Burdick, or her agent who acted in her behalf, of the fact. It is not averred that any false representation, or, indeed, any representation whatever, was made to Mrs. Burdick or to her agent when the deed was delivered, nor that any trick or artifice was employed to induce its acceptance, or to hinder or prevent its examination by them. It is averred that the deed was accepted without examination; but its non-examination was such negligence as takes from the party the right to predicate fraud upon the transaction. This conclusion is fully sustained by the principle recognized as sound in Long v. Warren (68 N. Y., 426), and other cases there cited. It was there laid down that when both parties have equal means of acquiring information, and nothing is said or done by either to throw the other off his guard, or to divert him from making such examination as a prudent man ought to make, and he omitted to make them, or to avail himself of the means and opportunities at hand to do so, he cannot predicate fraud upon the transaction. It has been repeatedly held that where a party signs an instrument without reading it or inquiring of its contents, not being thrown off his guard in any respect, and having full opportunity to examine it, he cannot gainsay its provisions or legal effect by alleging fraud or mistake in that regard. (See Irving N. Bank v. Myers, 21 Alb. Law Jour., 74; Moran v. McLarty, 75 N. Y., 25; Upton v. Tribilcock, 91 U. S. [Otto, 1], 50.) The defendant failed to show a case of fraud entitling her to the relief demanded, admitting the aver-ments of her answer to bo true.

If correct in the conclusions above stated, the judgment appealed from must be affirmed, and an examination of the question whether Mrs. Burdick could have the relief claimed by her without a cross-bill, or in some way tendering an issue to Martin upon the subject of the alleged mistake or fraud, becomes unnecessary. Judgment affirmed, with costs.

BoaRdmaA J., concurred.