Hoyt v. Putnam

Pollett, J.:

The plaintiff, by her deed of April 1, 1869, parted with her title to one-third of the north half of the farm, and before she can recover this third her title must be restored by a reformation of the deed. This action was begun nearly thirteen years after the date of that deed, and the defendants answer that the ten years’ statute of limitations (Code of Civ. Pro., § 388) bars her right to recover a judgment reforming the deed, and, consequently, is a bar to her recovery of one-third of the north half of the farm. Is this action, so far as it relates to the north half, an “ action for the recovery of real property,” within the meaning of the Code, or is it an action to reform her deed 1 • This question will be more clearly presented by excluding from our view the rights of the parties in the south half of the farm, and considering the question as arising in an action relating solely to the north half.

An action founded on the title of the plaintiff may be maintained for the recovery of real property if brought within twenty years after the right of action accrues. In such a case, strangers cannot limit the right to ten years by the interposition of forged conveyances or of fraudulent deeds or judgments to which the plaintiff is not a party. (Graham v. Luddington, 19 Hun, 246.) And as it was held in tlie case cited, it is immaterial, so far as the statute of limitations is concerned, whether the remedy is sought by a legal or an equitable action; but if the plaintiff has parted with his title, and can only recover through a judgment setting aside or reforming his own conveyance, and thereby restoring his title, the action cannot be maintained unless brought within ten years after the right of action accrues. (Miner v. Beekman, 50 N. Y., 337; McTeague v. Coulter, 6 J. & S., 208.) In Graham v. Luddington (supra) the plaintiff had title, and recovered on the strength of it. The judgment and deed interposed as a defense arose out of the fraudulent acts of others, and in no way affected her title or right of recovery. As before stated, this plaintiff cannot recover one-third of the north half until her title to it is restored by a reformation of her grant.

The instrument sought to be reformed is not an executory contract ; the plaintiff has not remained in possession of the land, nor does the action arise out of undiscovered fraud; but it is for the reformation of plaintiff’s deed, under which her grantee held possession for ten years, and from whom the defendants in interest have acquired title, possession and liens. Oakes v. Howell (27 How., 145) was brought by a vendor against a vendee, April 11, 1861, for the reformation of an executory contract for the sale of land, dated September 22, 1849, the last payment upon which fell due March 1, 1861. It was held that the right of action accrued at the date of the contract, and was barred by the lapse of ten -years. This case goes much further than it is necessary to go to sustain tlie defendant’s position in the case at bar.

So far as this action relates to the north half, it is not an action for the recovery of real property within the meaning of the statute of limitations. The primary cause of action does not rest on or arise out of the plaintiff’s title, because she has none, but arises out of her mistake in conveying all instead of two-tliirds of her title in the north half, and this part of the case falls within section 388 of the Code of Civil Procedure, and is barred by the lapse of ten years.

The only remaining question arises over the rights of the parties in the south half of the farm, in which the plaintiff has not conveyed her interest. Eeuben Hoyt took his mortgage with actual notice that plaintiff owned one-third of the farm. This fact is undisputed.

The court finds that Charles M. Putnam and James S. Minor purchased this mortgage from Hoyt with like notice, which finding is challenged by the appellants. This question was sharply contested before the trial court, and the evidence is so conflicting that the finding ought not to be overthrown.

The defendants, Harriet Putnam and Mary E. Minor, took their title for the benefit of their husbands, paying nothing, and are in no better position than their husbands.

This is not an action for the recovery of land within the Code, and triable before a jury. Persons are parties hereto who are not proper parties in such an action (Code Civ. Pro., §§ 1502, 1503); and under the pleadings rights are sought to be adjudicated, and were adjudicated, which could not be in such an action, and this judgment may be properly modified, without costs to either party on this appeal.

The judgment is modified by declaring the Hoyt mortgage to be a lien upon the whole of the north half, and a lien upon an undivided two-thirds of the south half of the farm, and as modified affirmed, without costs to either party.

Judgment to be settled before Follett, J.

So ordered.