« ΠροηγούμενηΣυνέχεια »
Against grantee, by the heirs of deceased grantor, to have a
deed reformed, and a mistake in the description of the premises corrected ; stated separately, by paragraphs or articles.
SUPREME COURT – RENSSELAER COUNTY.
L. M., B. G. M., and R. M., the said R. M.
The above named plaintiffs, L. M. and B. G. M., of full age, and R. M., an infant, by C. A. D., his guardian, duly
1 An infant must appear by guardian (Code, $ 115), and the suit should be as above entitled, in the name of the infant, by his guardian, and not “C. A. D., guardian of R. M., an infant," &c., which would be the suit of the guardian, and not of the infant. The case of Hulbert v. Newell (4 How. Pr. R., 93), holds it unnecessary to have a guardian appointed where the infant is joined with others; but this appointed by order of the court' complain of the above named defendant, and state the following facts, constituting their cause of action.
First. That said plaintiffs are the children and constitute all the heirs at law of P. M., deceased, who died on or about the day of — intestate, leaving no widow, him surviving.
Second. That at the date of the deed of conveyance hereinafter mentioned, the said P. M. was seized and possessed of the premises therein described, and other lands and premises adjoining the same, on the north boundary thereof, and situate in the town of, &c.
Third. That being so seized and possessed of the whole of said premises, the said P. M. and H. M., his wife, on the
- day of — , executed, duly acknowledged, and delivered to the defendant a deed, with full covenants in the usual form, of a portion of said premises, by the following description : [Insert description of premises].
Fourth. That as plaintiffs are informed, and believe, the above described premises, so bounded “on the north by the
case is not in accordance with the usual practice, and cannot, perhaps, be safely followed as a precedent. (See Pleadings, pp. 90, 91.)
* If the action is brought by a guardian, committee, receiver, &c., the complaint must show the mode of his appointment (Plead. 291, see also, 13 How., 413; 4 Abbott, 502), but it is not usual to do so where the suit is the infant's, by his guardian, and the general allegation that the action is brought by “A. B., an infant, by C. D., his guardian," is sufficient.
2 The commencement of the complaint may be in any form the pleader desires. I have usually adopted, in practice, the language of the Code, stating, as above, “the facts constituting the cause of action.” (See note, ante page 2.) It is not uncommon to state the entire complaint on “information and belief,” which, if the facts are not presumptively within the knowledge of the parties, may properly be done. (See Plead., 357, 358.)
creek called the Wynantskill, as it winds and turns," include three acres, or thereabouts, more land than was actually purchased by the defendant of said P. M., or was intended to be conveyed by him.
Fifth. That about two years prior to the time of said conveyance, the Wynantskill, by reason of heavy rains and freshets, suddenly changed its course from the bed or channel where it had run at that place for more than twenty years preceding, and made for itself a new channel for & considerable distance, bending northwardly from the old bed of the stream, and leaving between such new channel (where, at the date of said conveyance it ran, and still continues to run) and the bed of the old stream, about three acres of land..
Sixth. That, as plaintiffs are further informed and believe, the said defendant, at the time of his contract for said land, was informed by said P. M., and knew of such change in the course of said stream, and that he contracted to purchase, and did purchase only so much of said premises as lies southerly of the old bed of the said stream, and that said old bed of the stream was pointed out by said P. M. at the time of making the said contract of sale, and assented to by said defendant, as the northern boundary of the premises to be conveyed, and was so understood by both parties, and so intended to be conveyed.
Seventh. That said premises so intended to be conveyed, are the same premises heretofore granted by one J. A. D., to said P. M., before the change of the course of said stream, and while it ran in its former channel.
Eighth. That the conveyance from said P. M. to the defendant, is precisely the same in the description of the premises with that of the said J. A. D. to the said P. M.
Ninth. That, as plaintiffs are informed and believe, the defendant's deed of conveyance was drawn by C. B., Esq.,
the attorney for said P. M., and that said P. M. inadvertently, and by mistake, gave said attorney the said conveyance from J. A. D., to draw therefrom the description of said premises, without explaining to said attorney, as he intended to have done, that the course of said creek had changed, and without directing said attorney to alter said description, by making the northern boundary of the premises the old channel or course of the stream.
Tenth. That, as plaintiffs are further informed and believe, not only did said P. M. suppose that he was conveying only such premises as were embraced in said deed of J. A. D., and as were bounded on the north by the old or former bed of the Wynantskill, but the defendant also supposed he was only receiving such premises and no other, whereas the said northern boundary, as described in said deed to defendant, is, by the mere mistake of said P.M., and his attorney, the said creek, as it now “winds and turns," and did at the time of said conveyance to defendant.
Eleventh. That said P. M.,. in his life-time, and these plaintiffs, or one of them, since the death of said P. M., have called the attention of defendant to the fact of such mistake, and requested defendant to rectify it, and to execute to them a quit-claim deed of the land and premises between the old and new bed of the stream, at said plaintiffs' expense, but the defendant has always refused, and still refuses to do so, and has entered upon, and is in possession of the whole of said premises, claiming that he owns the same under said deed, up to the present bed of said creek, as the northerly boundary thereof.
Wherefore, the plaintiffs demand judgment against the defendant that said deed from P. M. to the defendant may be re-formed, and be made to conform to the agreement and intentions of the parties thereto, by correcting the description of the premises therein mentioned, making the northerly boundary line of said premises the old bed or channel of said Wynantskill, instead of the said creek as it now "winds and turns ;” and that said defendant deliver up, and said plaintiffs be let into possession of the said disputed premises, and the plaintiffs title thereto confirmed, or for such other or further relief in the premises as shall be just and equitable, together with the costs of this action.
RENSSELAER COUNTY, ss:
L. M., one of the above-named plaintiffs, being duly sworn, says: That he is acquainted with the facts stated in the foregoing complaint, and that said complaint is true, of his own knowledge, except the matters therein set forth on information and belief, and as to those matters he believes it to be true.
L. M. Subscribed and sworn before me, this ? 1st day of January, 1858,
JOHN L. FLAGG
To reform a written contract for the lease of real estate, in
case of mistake of fact, and praying the specific performance of the contract against the lessor, as so reformed, stated by paragraphs.?
Where there are several parties united in interest, the verification to the complaint must be made by one of them acquainted with the facts. (Code, § 157.)
2 The question whether a court of equity would reform or vary a contract by parol evidence, and then enforce it specifically, was settled