#### SAMUEL T. GRAVES and others, Plaintiffs, *v.*DAVID BRINKERHOFF, Defendant.

*Submission widen' Code,*§ *372—both legal and equitable relief may be given under*— *Money paid under mutual mistake*— *when it may be recovered.*

The plaintiff having agreed to purchase of the defendant certain land at a stipulated price per acre, a survey was made of the land, and the plaintiff paid the amount appearing thereby to be due from him. Subsequently it was discovered that the land did not contain the number of acres called for by the survey. *Held,*that the plaintiff was entitled to recover the amount paid by him through mistake, with interest thereon from the time of payment.

After the sale to plaintiff, the defendant sold the remainder of the land to third persons, relying upon the survey, thereby conveying to such persons more land than they were entitled to. *Held,*that the plaintiff was not thereby prevented from recovering the excess paid by him.

Upon submission of a controversy under section 372 of the Code, the court is bound to give such judgment as the facts require, whether it be legal or equitable.

Controversy submitted upon an agreed statement of facts, in pursuance of section 372 of the Code. Some time prior to March, 1867, the defendant made an oral agreement with the plaintiffs for the purchase of a piece of land situate in the town of Seneca, Ontario county. The quantity of land was unknown. The price agreed upon was $115 per acre. In pursuance of such agreement the land was surveyed, and a map thereof made. The plaintiffs were present at the survey, by S. S. Graves, and the defendant was present in person. After the survey was made and a map thereof furnished, a written agreement was entered into, bearing date March 1st, 1867^ in and. by which the parties undertook to ratify their previous oral agreement for the sale and purchase of said land. In this agreement the description was copied from the surveyor’s map and the figures thereon. The contract was executed by the delivery of said deed, the payment of a portion of the moneys mentioned in said contract, and by executing and delivering to the defendant a bond and mortgage for the balance. The plaintiffs and defendant supposed the number of acres mentioned in the contract and deed to be correct, and never knew of the mistake until the latter part of the year 1873, when the plaintiffs had occasion to have a portion of the land *306resurveyed, and then, for the first time, was it discovered that instead of forty-one and eighty-four one-hundredths acres, as set out in the contract, the laud sold by the defendant measured but thirty-seven and forty-one one-hundredths acres, of all of which the plaintiffs immediately informed the defendant, and demanded the difference of him, with interest, which he declined to pay over, except upon the judgment of this court. The mistake between the parties to the submission was mutual. Neither of the parties knew or know anything about surveying or the computation of amounts of land by links, chains and courses, and each took the computation at the time to be correct. The plaintiffs overpaid, through said mistake, the sum of $391, on which they claim interest, as they have paid interest *from*March 1, 1867. At the time of the survey and the making of the contract and deed above mentioned, the defendant was the owner of one hundred and five and eighty-one óne-hundredths acres of land in a body from which the land in question was taken; and after the sale to the plaintiffs, and about the year 1869, the defendant, relying upon the survey of that portion sold to the plaintiffs, and believing it to be correct, sold without survey, according to the boundaries as they then existed, the residue of said land in a body to Bronson *&*Herendeen, of Geneva, N. V., for sixty-five acres more or less; but the said Bronson & Herendeen bought the same in bulk, without any reference to quantity.

*George B. Dusinberre,*for the plaintiff.

The deed does not embody the final intention of the parties. *(Gillespie*v. *Moon,*2 Johns. Ch., 585; *Prior*v. *Williams,*2 Keyes, 538; 5 Mason, 572; 25 Vermont, 576 ; 2 Johns. Ch., 630; 32 Me., 274.) When a conveyance, executed for the purpose of giving effect to and executing an agreement, by any mistake, gives a purchaser less than the agreement entitles him to, he may call on the court to rectify the defective conveyance and give him all that his agreement comprehended. (Kerr on Mistakes, 419 ; *Tilton*v. *Tilton,*9 N. H., 385; *Blessing v. Beatty,*1 Rob., 286; *Blodgett*v. *Hobart,*18 Vt., 414.) The courts will always relieve against a mutual mistake of fact, where one party pays money to another through such mistake. (Chit, on Cont. [Am. ed. of 1844], 426 and cases cited in notes; Chitty on Bills, 425; 2 Smith Leading Cases, 237; *Mowatt**307v. *Wright,*1 Wend., 355 ; *Burr*v. *Veeder, 3*id., 412; *Waite*v. *Leggett,*8 Cow., 195; *Union Bank*v. *U. S. Branch Bank,*3 Mass., 74; *Garland*v. *Salem Bank,*9 id., 389; *Bank of Commerce*v. *Union Bank,*3 N. Y., 230; *Kingston Bank*v. *Eltinge,*40 id., 391; *Duncan*v. *Berlin,*46 id., 685.) Where the money is erroneously paid by one party to another in mutual ignorance of facts which if known would have prevented the payment. (1 Story Eq., § 142; *Burr*v. *Veeder, supra.)*Where money is paid by one party to another through a mutual mistake of fact in respect to which both were equally bound to inquire. *(Canal Bank*v. *Bank of Albany,*1 Hill, 287; *Bank of Commerce*v. *Union Bank, supra.)*Mor is it any defense that the plaintiff had within his reach the means of ascertaining the truth, or that he omitted to use vigilance and care by which the mistake would have been avoided. *(Kingston Bank*v. *Eltinge,*40 N. Y., 391; *U. Nat. Bk., Troy*v. *Sixth Nat. Bk., N. Y.,*43 id., 452.) Nor does negligence in making the mistake prevent the party from recovering back money paid under a mistake of fact. *(Duncan*v. *Berlin,*46 N. Y., 685; *National Life Ins. Co.*v. *Jones,*1 N. Y. Sup. Ct., 446 and cases there cited; *Lawrence*v. *Am. Na. Bk.,*54 N. Y., 433 ; *Nat. Bk. Com., in N. Y.,*v. *Nat. Mec. Banking Association,*55 id., 211.) It makes no difference that the defendant cannot be restored to his original position upon paying back the money. *(The Kingston Bank*v. *Eltinge,*40 N. Y., 391; *Mayer*v. *The Mayor of N. Y. City,*9 Sup. Ct. [2 Hun], 306.)

*D. B. Backenstose,*for the defendant.

It is impossible to place the parties in *statu quo,*and therefore the court will not relieve the plaintiffs. *(Martin*v. *McCormick,*4 Sandf., 366; 1 Story Eq. Jur. [10th ed.], ¶ 138, p, 138; 2 Kent’s Com. [11th ed.], 656 [marg. page 492], note.)

Gilbert, J.:

As a general rule, where a person by mistake of fact, pays money to another which he does not owe him, the law implies a promise to repay it.* Whether in a case like this, where the mistake occurred in paying the purchase-money of lands, and the purchase has been consummated by a conveyance, the remedy can be *308pursued in an action at law, or must be sought in a court of equity, it is not material to inquire. For, upon a submission of a" controversy pursuant to section 372 of the Code, the court is bound to give such judgment as the facts require, whether the relief be legal or equitable.

The facts in this case clearly entitle the plaintiffs to a return of the sum claimed. It is a case of a plain mistake, and one which must be deemed material.*

We think it is not an obstacle to the relief sought, that the parties cannot be .put in the position they were in before the sale was made; in other words, that it is not necessary, in order to do justice to the defendant, that the plaintiffs should reconvey the land, and that the contract of sale should be rescinded. The defendant sold the land for a fixed price per acre agreed upon, and the plaintiffs are entitled to both the land and the amount which they overpaid by mistake. This is the only way in which the mistake can be corrected. To annul the sale would not do that, but would deprive the plaintiffs of a fair bargain without any fault on their part. Such a decree would not be in accordance with the rule in equity on this subject. That rule merely requires that the parties shall be placed in the same situation they would have been in, if the mistake had not happened. Upon that principle, the plaintiffs are entitled to the land, but the defendant is entitled only to a sum less than that which he received, which is ascertained by deducting therefrom the amount claimed by the plaintiffs.

Nor does the subsequent sale of the residue of the defendant’s land to other parties affect the equitable rights of the plaintiffs. They were strangers to that transaction, and if the mistake which they now seek to have corrected caused the defendant to make that sale, at a price less than he would otherwise have obtained, the surveyor .who caused the mistake, and not the plaintiffs, is responsible.

These are the only questions presented. The plaintiffs are, therefore, entitled to recover the sum of $391, with interest from March 1, 1867, with costs.

Present — Mullin, P. J., Smith and Gilbert, JJ.

Ordered accordingly. .

*

 Wheadon v. Olds, 20 Wend., 174

*

1 Story Eq., §§ 140,141; Adams Eq., 188; Marvin v. Bennett, 26 Wend., 169.