Messenger v. City of Buffalo. and also in regard to the quantity of sand. The city had contracted for eighteen inches of sand under the pavement; but subsequently excavated and graded the street in such a way as to require twenty-two inches. That the pavement should be brought up to the established grade was the important point, and for the interest of the defendant, as the paving would otherwise have been useless. I think, therefore, that the city, in effect, consented to vary the contract in regard to the quantity of sand to be furnished. It was not necessary that such assent should be expressed by a formal resolution of the common council, but it may be implied from its acts relating to the particular work subsequent to entering into contract with the plaintiff. It is urged that when the plaintiff found that he could not, fulfill his contract in all its particulars, he should have obtained the action of the common council before commencing or continuing the work. This could not have been absolutely required to enable him to recover. The corporation had authorized the street commissioner to make the contract, and the contract made provided that the work should be done under the direction of such commissioner. This plainly intended that the street commissioner might direct in regard to variations rendered necessary by the action of the city authorities. Had the plaintiff insisted on doing the work in precise accordance with his contract, the street commissioner could have prevented it, or at least it would have been his duty to present the matter to the common council. Instead of doing this, however, he directed that the street should not be dropped below, but that extra sand must be furnished by the plaintiff to keep it at the grade. Under the facts found, I am of the opinion that the plaintiff should have recovered. The city must be deemed 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. Bartlett v. Judd. COMSTOCK, Ch. J., SELDEN, DENIO, BACON and WELLES, JS., concurred; DAVIES and CLERKE, Js., dissented, and were for affirming the judgment. Judgment reversed. 21 200 153 241 BARTLETT v. Judd. In ejectment for land claimed to be conveyed by a sheriff's deed upon sale under execution, parol evidence is admissible, that the sheriff at the sale expressly excepted the land out of a larger tract offered by him for sale. The exception in the sheriff's deed of land "conveyed by A B" to the defendant, construed as covering land conveyed to the latter, through mesne conveyances, by A B's grantees. The sheriff's deed re-formed in accordance with the facts, and the demand of the defendant in his answer. The statute of limitations, if ever a bar to such relief upon the application of a defendant, does not commence running until he is charged with knowledge of the plaintiff's assertion of a claim, under the deed, inconsistent with the actual exception made at the sale. APPEAL from the Supreme Court. Ejectment to recover two and a half acres of land in possession of the defendant, who claimed to hold them as purchaser by contract from Martin Grover, who derived title through several mesne conveyances from Daniel Tuttle, the common source of title. In January, 1835, the plaintiff recovered a judgment against Tuttle for some $147. In 1836, Tuttle became the owner, by purchase, of lot No. 4 in Scio, Allegany county, containing about one hundred and forty-one acres of land, portions of which he subsequently sold and conveyed to Sheldon Brewster, Norman Perry, John B. Church and John Moore. Moore's deed covered about sixty-three acres, and the premises in question in this suit are included in that conveyance. In August, 1837, Moore sold and conveyed his sixty-three acres to William Smith, who by his agent was in possession of this land in August, 1839. Upon an execution issued on the plaintiff's judgment, the sheriff advertised the real estate of Tuttle, and on the 13th of August, Bartlett v. Judd. 1839, he offered for sale the interest of Tuttle in lot No. 4, with certain reservations, which in the certificate are described as follows: "Excepting and reserving therefrom the lands conveyed by Daniel Tuttle to Sheldon Brewster, Norman Perry, John B. Church and William Smith." The plaintiff became the purchaser at the sale, and in November, 1840, obtained the deed of the sheriff for the premises, in which the lands are described, and the reservations are expressed, precisely in the same words used in the certificate. Upon the trial before the referee it was proved, under the objection of the plaintiff that the testimony was incompetent, that at the sale the sheriff did not offer the sixty-three acres held by Smith for sale, but publicly declared that the same were not embraced in the lands sold. The exception in the certificate was intended to exclude them. The referee found all these facts, and as a conclusion of law held that the plaintiff acquired no title to the premises in question by reason of the same having been excepted from the lands conveyed, and that the exception in the certificate and deed should be read as if the words "by Daniel Tuttle" were left out. He did not expressly find that the deed should be reformed, as the defendant in his answer had demanded by way of affirmative relief, but on appeal by the plaintiff the court at general term gave the defendant leave so to modify the judgment as to direct the re-formation, and it was accordingly done. The plaintiff appealed to this court. Albert P. Lanning, for the appellant. E. Peshine 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 sixty-three acres within the boundaries of which the parcel now in question is contained, 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, if any there is, SMITH, VOL. VII. 26 Bartlett v. Judd. 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 enure 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, 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 cognizance, 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 an 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; work a mischief to the Bartlett v. Judd. but, they add, such exclusion will not 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 defendant may also claim in the same action any affirmative relief to which he shows himself to be entitled. 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 objec tionable. 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 authority denies that the deed can be |