H. & M. C. Gouverneur vs. Titus, administratrix, &c., 6 Paige Ch. 347

The Chancellor. It is admitted by the counsel for the appellant that the fact of the mistake in the two original conveyances of August 1827 and May 1829 is fully established by the evidence in the case; and as the defendant had notice of such mistake before the purchase of the premises under her execution, she acquired by that sale no greater right, as against C. H. Hammond or those who had subsequently acquired his equitable interest in the premises, than she previously had under the judgment itself. (Eells v.

Tousley, 1 Paige’s Rep. 280.) I cannot discover upon what principle the defendant claims the right to inquire into the amount or sufficiency of the consideration of the conveyance from C. H. Hammond to the complainants* or whether that deed was given for a present consideration or in payment of an antecedent debt. By the deed of confirmation they have obtained all the legal and equitable interest both of C. H. Hammond and of his father in the land ; the legal title at that time being still in Abijah Hammond.

And the erroneous conveyance to them of May, 1829, and the circumstances connected therewith, are only material to show that the deed of confirmation was intended to carry into effect a previous arrangement, and was not the mere purchase of a right in litigation. In other, words, if C. H.

Hammond, previous to the agreement of May, 1829, had an equitable right to a conveyance of the legal estate in the premises discharged of the lien of the defendant’s judgment, the complainants, by the deed of confirmation, have acquired both the legal estate and that equitable right, and are therefore entitled to the relief claimed by their bill. But if C, H.

Hammond had no such equitable right, then the payment to him of a present consideration in money, at the time of the conveyance of May 1829, could not have helped their case as the lien of the judgment had then attached, and in that case would overreach their title in equity as it now does at law. The defendant is estopped by her covenant with Abijah Hammond and C« H. Hammond, in the release of the 10th of December, 1829, from impeaching or calling in question the consideration of the deed to C. H. Hammond of August, 1827, in any suit or action respecting the premises in controversy.

And by the deed of confirmation which was executed six days afterwards the complainants became entitled to the benefit of this covenant, as the assignees of the premises or subject matter to which the covenant related. The vice chancellor is clearly right in the construction of this covenant; as it is evident from the whole instrument, when its different parts are taken together, that it was intended to provide for the very case now under consideration. The facts in relation to the mistake were then all fully known. C. H.

Hammond agreed to release to the defendant all his interest in the lands conveyed to him by his father, for the purpose of relieving him from the judgment; leaving the defendant to enforce the lien of the judgment against this 3109 acres which had not actually been conveyed by the deed, provided she had the equitable right to do so under the circumstances of the case.

But as he had released all his right to the other lands to the defendant, he did not intend to permit her to question the bona lides of the transaction with his father in relation to that conveyance, either in a litigation with himself or with those to whom he had agreed to convey this 3109 acres.

If such was not the intention of the parties it is impossible for me to conceive for what object this covenant was inserted in the release; The question which the parties intended to leave for future litigation unquestionably was, whether the equitable right to have a conveyance of the land intended to be embraced in the deed but left out by mistake, should be allowed to prevail as against the legal lien of a subsequent judgment against the grantor.

That question had been decided in this court a short time previous, though the decision was probably not known to these parties at that time, as the first volume of Paige’s Reports had not then been published. As the law upon which the rights of these parties depend is now considered as settled by numerous decisions both in this state and elsewhere, there is no ground for disturbing the decision of the vice chancellor.

And as this litigation has been carried on by the defendant for the benefit of the estate which she represents, I cannot say it was an improper exercise of the discretion of the vice chancellor upon the question of costs, to charge the costs of the suit upon that estate. The decree of the vice chancellor is therefore affirmed with costs.