20 F. Cas. 474 | U.S. Circuit Court for the District of Minnesota | 1805
The evidence in this case establishes the fact of a mistake in the mortgage executed by Jordan to Morrison, and a court of equity will, when appealed to, correct such a mistake and reform the instrument so as to express the in-lent of the parties thereto. This is a fundamental rule of equity jurisprudence, and, the mistake being mutual, the mortgage will be declared a lien upon the property intended as between the parties. If the titles of the Jewetts, as bona fide purchasers, have intervened, a reformation of the mortgage will not be allowed to prejudice their titles. But if their rights were subsequently acquired with notice, actual or constructive, they are subject to Morrison’s lien. The delay in bringing suit to correct the mistake, which shows laches on the part of the complainant, is satisfactorily accounted for. The recital in the deed from Jordan to Vinacke is evidence against him; and it being stated that a mortgage had been given, and Vinacke agreed to pay it, such recital is intended as the agreement of the parties and estops them. Vinacke has thus admitted conclusively the lien of the mortgage and assumed a personal liability. It cannot be doubted that the doctrine of privity prevails, and all persons claiming title to the property under and through Vinacke & Kennedy are privies in estate, and can be in no better situation than they are from whom the title is obtained. Jackson v. Carver, 4 Pet [29 U. S.] 88; Bank of U. S. v. Hatch. 6 Pet. [31 U. S.] 250 ; 9 Wend. 209; Story. Eq. §§ 152, 165. The defendants, Geo. F. and Horace A. Jew-ett, on investigation of the title, would necessarily discover the recital that the mortgage was intended to cover the land described in the deed, and at least were required to make inquiry of Jordan or Vinacke or Kennedy. 41 N. H. 560. The registry law of this state does not require a description of the property to be contained in the index book or reception book. Rev. St. Minn. p. 126, §§ 156, 157. The names are indexed, through whom the titles would be traced; and in so doing, the defendants Jewett were required to look beyond the index book and examine the book where the description is recorded, and are charged with knowledge of all facts recited therein. If they failed to do so it was negligence.
The case of Shrover v. Nickell. 55 Mo. 264, has no application to the one at bar. In that case the deed sought to be reformed was executed by a married woman, jointly seized with her husband, and the court placed the decision upon the statutory regulation specifically pointing out how a married woman could bind herself; and inas
It is claimed the cause of action is barred by the statute of limitations, enacting (page 451, tit. 2, c. 00, § 3): “Actions can only be commenced within the periods prescribed by this chapter, after the cause of action accrues, except where in special cases a different limitation is prescribed by statute.” Section 0. Within six years. An action upon a contract, etc.
Is this an action upon a contract? The complainant by his bill seeks to foreclose a mortgage, and states therein that, as executed, it did not cover the property intended to be mortgaged by the parties thereto, and asks a correction of the mistake, so as to express the intention of the mortgagor and mortgagee, and make it such as they supposed was executed and delivered. If the instrument to be reformed was an agreement to execute a mortgage, the limitation of six years within which actions on contracts can be commenced, might control. In my view of the case, if any statutory limitation governs, it is that prescribed by section 11 of chapter G6, viz.: “Every action to foreclose a mortgage upon real estate shall be commenced within ten years after the cause of action accrues.”
The complainant is entitled to a decree for the relief prayed, and it is so ordered.
