| Superior Court of New Hampshire | Jul 15, 1855
With regard to the general position taken by the defendant, of want of equity in the bill, we think it quite clear that it is untenable. Taking the allegations of the bill to be true, which the demurrer admits, it appears manifest that an error was committed in drawing the deed from Busby to Jordan, and that the subsequent deeds, referring to the Jordan one for a description of the premises, are alike incorrect. The deed, instead of beginning seventy feet from the corner of the lot, and then running thirty feet to the meeting-house, as it should have done, begun at the corner of the lot itself; and inasmuch as monuments control distances, the description covers the whole one hundred feet square. All the statements of the bill confirm us in this conclusion, and there is no doubt in our minds that the complainant is entitled to relief in some form.
The several objections that the deeds referred to do not accompany the bill, that the premises are not sufficiently
And the objection that there is no privity between the complainant and defendant, cannot be sustained. The privity necessary to exist between parties to proceedings in equity, is not necessarily a privity of contract, but such as gives the complainant a title to sue the defendant. 1 Danl. Ch. Prac. 376. In this case, the complainant charges upon the defendant that he purchased of Crawford only the smaller lot of thirty feet; that he knew when he took the deed that there was a mistake in the description, and that he is now unjustly endeavoring to recover of the complainant, by suit at law, the whole premises. And the complainant has filed this bill to stay that suit, and to procure his title to the seventy feet to be established. Upon this statement, it is quite apparent that the defendant has not only knowingly committed a wrong, but is seeking to perpetuate that wrong against the complainant by his suit at law, and if his charges shall be made out, his bill is properly brought against the defendant.
But the exception that Jordan and Crawford should be made parties to the bill, we think, is well taken. The general rule is, that all who are to be affected, either immediately or consequentially, by the decree sought for, should be made parties. The success of the plaintiff against a defendant who is immediately interested, may give such defendant a right to proceed against others, for the purpose of compelling them to make compensation, either in whole or in part, for the loss sustained, or to do some act towards reinstating him in the situation in which he would have been but for the success of the plaintiff. Those persons, therefore, who are liable to be thus affected by the suit, must frequently be made parties. 1 Danl. Ch. Prac. 292, 329;
In such cases, the court, in order to avoid a multiplicity of suits, require that the parties so consequentially liable to be affected by the decree, shall be before the court in the first instance, in order that their liability may be adjudicated upon and settled by one proceeding.
Crawford gave a warranty deed of these premises to Littlefield, the defendant, and Jordan, also, a warranty deed to Crawford. Should the complainant succeed against Little-field, the latter would have at least a prima facie cause of action against Crawford for a breach of his covenants of warranty, and so also Jordan would be liable over to Crawford. Whether these actions could be successfully prosecuted, is not necessary for us to determine at this time ; but it is apparent that there is a contingent liability, which, we think, should be passed upon in this proceeding.
In regard to the prayer of the bill, that it should have been for a reformation of the deed, and not for a release by Littlefield, there would seem to be authorities for either course.
That a deed may be reformed is well settled. A court of equity may, upon parol evidence, correct a mistake in a deed, or other written contract, if the same be clearly shown to exist. Tilton v. Tilton, 9 N.H. 385" court="None" date_filed="1838-12-15" href="https://app.midpage.ai/document/tilton-v-tilton-8504239?utm_source=webapp" opinion_id="8504239">9 N. H. Rep. 385; Gillespie v. Moon, 2 Johns. Ch. Rep. 596; Gates v. Green, 4 Paige’s Ch. Rep. 355; Prescott v. Hawkins, 12 N.H. 19" court="None" date_filed="1841-07-15" href="https://app.midpage.ai/document/prescott-v-hawkins-8504469?utm_source=webapp" opinion_id="8504469">12 N. H. Rep. 19; 1 Story’s Com. on Eq. §§ 152, 159.
And in De Riemer v. Cantillon, 4 Johns. Ch. 85" court="None" date_filed="1819-08-05" href="https://app.midpage.ai/document/de-riemer-v-cantillon-5550341?utm_source=webapp" opinion_id="5550341">4 Johns. Ch. Rep. 85, where on a sale of certain premises in the possession of the defendant, the sheriff’s deed, by mistake, did not include all the premises advertized and intended to be sold, but all parties supposed the whole was included, and the plaintiff bid a price accordingly, and took possession of the whole, it was decreed that the defendant be perpetually enjoined from prosecuting an ejectment suit, brought to recover the part
After Jordan and Crawford shall be made parties, if the specific decree asked for, of a release from Littlefield, shall not be deemed by the court to be the proper one, the deed of Busby to Jordan can probably be reformed under the general prayer for relief, and the other deeds, referring to that for a description, would, consequently, be reformed. Or such decree may be made as will do justice between the parties. Under the general prayer for relief, a complainant may pray at the bar for such specific relief as the statements of the bill will warrant, provided it does not conflict with that specifically prayed for. Stone v. Anderson, 6 Foster’s Rep. 506; 1 Danl. Ch. Prac. 434, 435; Story’s Eq. Pld. 540; Cooper’s Eq. Pld. 14.
For the want of proper parties to the bill the demurrer must be sustained. But the complainant may amend his bill in this, and also in the other particulars stated, should it be deemed necessary.