Statement of the Case. ed to have impliedly assented to the alteration of the contract in respect to the quantity of sand to be furnished. The judgment of the supreme court should be reversed, and a new trial ordered, with costs to abide the event. * 200 ] *Judgment reversed, and new trial ordered. DAVIES, J., and CLERKE, J., dissented. BARTLETT V. JUDD. Parol Evidence to Reform Deed.-Statute of Limitations. In ejectment for land claimed under a sheriff's deed, parol evidence is admissible, for the purpose of reforming the deed, that the sheriff, at the sale, expressly excepted it out of a larger tract. An exception of land conveyed to the defendant by A., construed to cover land derived from A. by mesne conveyances. When a defendant in ejectment is in possession, claiming under a sheriff's deed, the statute of limitations (2 R. S. 302, §52) does not begin to run against the right to have the deed reformed in equity, until such defendant is chargeable with notice of the assertion of an adverse claim, even if ever a bar to such relief. Bartlett v. Judd, 23 Barb. 262, affirmed. APPEAL from the general term of the Supreme Court, in which final judgment was entered in favor of the defendant, upon the report of a referee. This was an action in the nature of an ejectment to recover two and a half acres of land, in Scio, Alleghany county. Both parties claimed under Daniel Tuttle, the common source of title. In February 1834, Daniel Tuttle acquired the title in fee of a piece of land described as lot four, in Wellsville, Alleghany county, containing 131 acres; and soon 83 Statement of the Case. afterwards conveyed small portions thereof to Theodore Brewster, John B. Church and George B. Jones. On the 23d July 1834, Tuttle conveyed to one John Moore a lot of about sixty-three acres, describing it by metes and bounds, which included the premises in controversy in this suit. The deed to Moore was recorded on the 25th July. On the 1st August, Moore conveyed the 63 acres to William Smith, by deed duly acknowledged on that day, and recorded 13th January 1837. The defendant Judd derived title to the premises in dispute, by mesne conveyances from William Smith, and was in possession thereof, at the time of the commencement of this action. *In January 1835, the plaintiff recovered a [ * 201 judgment against Tuttle for $147.51; and under an execution issued upon this judgment, the sheriff levied upon the real estate of Tuttle and advertised the same for sale on the 13th August 1839, at which Bartlett, the plaintiff, became the purchaser. The certificate of sale described the premises as the whole of lot No. 4 in the town of Scio, "excepting and reserving therefrom the lands conveyed by Daniel Tuttle to Sheldon Brewster, Norman Perry and William Smith." Smith was then in possession of the 63 acres conveyed to him by Moore; but Tuttle never conveyed any land to Smith. On the 13th November 1840, the sheriff executed a deed to the plaintiff as purchaser, describing the premises precisely as in the certificate of sale. The defendant in his answer denied that the sheriff had ever sold the 63 acres; set up the reservation in the deed; and asked that it be reformed so as to exclude the lot in question; to which the plaintiff replied the ten years' statute of limitations. (2 R. S. 302, § 52.) The referee, under exceptions by the plaintiff, admitted parol evidence in reference to the exceptions and reservations made by the sheriff at the time of sale; and found as a conclusion of law, that the plaintiff acquired no title to the land in Opinion of the Court, per BACON, J. question, and that the deed and certificate should be read as if the words " by Daniel Tuttle" were left out. He did not expressly find that the deed should be reformed, but the court at general term gave the defendant leave so to modify the judgment; which having been done, the plaintiff took this appeal. Lanning, for the appellant. Smith, for the respondent. BACON, J.-I am by no means clear that, as the deed stands, and without any change in its terms, the sixtythree acres within the boundary of which the parcel now in question, is not excepted. There was no doubt, that the land conveyed to Smith, and then actually held by him, was intended to be excepted. The only obscurity * 202] if any there is, *arises from the recital, that it was conveyed to him by Tuttle, whereas, in point of fact, it was conveyed by Tuttle to Moore, and from him to Smith. Moore was simply the conduit through which it passed, an intermediate link in the chain which connected the two by only a single remove. In a legal, if not perhaps in a strictly popular sense, it may be said the premises are conveyed by Tuttle to Smith through Moore. The deed by Tuttle to Moore was to him, his heirs and assigns; the covenants of the grantor would inure to the benefit of, and include, Smith, the subsequent grantee of Moore; there is both privity of estate and of contract between Tuttle and Smith, the covenants running with and being attached to the land. It is said, that “where a party covenants in a deed, for himself, his executors and assigns, the word assigns embraces any person to whom the property or interest described in the deed may happen, at any future time, to be assigned, either by deed or by operation of law." It seems to me, Opinion of the Court, per BACON, J. therefore, that it is putting no violence on the language of this deed, to construe it as embracing the land conveyed, in effect, by Tuttle to Smith, although in point of fact, in its transmission, it happened to pass through another's hands. II. The case made by the defendant was one manifestly calling for the reformation of the deed, if there is no valid legal objection to the reception of the evidence by which it was established. Although cases may be found, in which such evidence has been held inadmissible, where the question was one strictly of legal cognisance, yet, the doctrine that a deed, contract or other instrument may, in equity, be reformed, has been too long established, to require authority to be cited to sustain it. In some of the cases where, in action of ejectment, proof of this character was rejected, it was nevertheless intimated that a remedy existed for the party by resort to equity. Thus, in Jackson v. Roberts (7 Wend. 83), where the sheriff's deed recited a sale under four executions, and the defendant offered to show by parol that, in fact, the sale was only made under one, the evidence was rejected; the court affirmed the ruling, saying, that it was not admissible as a *defence, in that action; but, [ * 203 they add, such exclusion will not work a mischief to the party suffering thereby, since he can have relief, by a summary application to the court under whose authority the officer acts, or through the medium of a court of equity. To the same effect is Swick v. Sears (1 Hill 17). Under our former system, it will hardly be questioned, that on a bill filed by the present defendant, setting forth and establishing the facts found in this case, he would be entitled to have the deed corrected, and to be quieted in his title to the land. But this resort is no longer necessary, since, by our present system, an equitable defence may be interposed as well in an action of ejectment as in any other form of proceeding, and the Opinion of the Court, per BACON, J. defendant may also claim, in the same action, any affirmative relief to which he shows himself to be entitled.1 I should hardly be willing to concede, that by the legitimate application of any rule of evidence, or within any clearly adjudged case, the evidence given before the referee was objectionable. The question is not as to what was the intention of the parties officiating at the sale, nor is it sought, strictly, to contradict the deed, and make it speak a language utterly at variance with its purport and meaning; but the point of inquiry is, what as a matter of fact was done by the sheriff at the sale? As to this, there is no contradictory evidence, but it is past all doubt or dispute, that he did not sell the sixty-three acres, but expressly excepted them from the sale. Beyond all question, he so intended to express himself in the certificate, and when he recited that the lands conveyed by Tuttle to Brewster, Perry, Church and Smith, were excepted and reserved, he spoke of Tuttle as the grantor, and assumed the others to be his immediate grantees, as all were but Smith. The statute only makes the certificate presumptive evidence of the facts stated in it, and it clearly appears, that the certificate recites a fact either falsely or mistakenly; and it is immaterial which. The presumption is thus overcome by evidence that it is wrong, and it should be corrected. The plaintiff in this case stands in no better position than if this were a deed inter partes, in which case, no * 204 ] authority denies that the deed can be *reformed. He was the purchaser at the sale; he stood by and heard the proclamation of the sheriff, that the sixtythree acres were excepted from the sale, and he purchased knowing that he was not bidding upon this land, and that he was to have no title to it. Being chargeable with notice, before he received his deed, it is both dis 1 It is well settled, that on the trial of an action at law, the instrument relied upon by the defence, may be reformed by parol evidence, on the ground of mistake. Meyer v. Lathrop, 73 N. Y. 315. |