Daily globe., 1878-12-17

but it need not necessarily be in writing.
l regret that the bill of exceptions is not
more full and precise, but as l construe it, ne
error is affirmatively disclosed and the judg-
ment below is affirmed.
Affirmed.
In the United States circuit court, yester-
day, Judge Nelson, Judge Dillon concurring,
filed the following decision in q mortgage
foreclosure case. The opinion will repay
careful perusal by both money loaners and
borrowers.
Mark g. Reepes Us. Thomas Vinocke, Y. P.
Kennedy, Geo. r. Je,Uett and Horace a.
Jeecett.
This suit is brought to forclose mortgage
executed June 25, 1868. by c. b. Jordan, and
to correct a description of the property in the
same. The facts these:
On the above date, G. B. Jordan, to secure
note given R. Morrison for the benefit of the
firm OF Messrs. Bohrer Morrison 4 Reeves,
mortgage upon tract OF land then
owned by him in the county of
Renville in this district. described as follows:
Commencing at thl southeast corner of the
southwest quarter of section II, town III,
| range 81, west, running thence north Is rods
thence west 5 rods. thence south Is rods, thence
| east to the place of beginning, containing one
and one-half acres, and for that purpose did
execute and deliver to Morrison, a member Of
the firm, a mortgage intended to embrace an
undivided one-half of this land which instru-
ment was duly recorded April 25. 1870. Soon
thereafter and before the note was due, for
value, the firm sold and assigned the note and
mortgage to the complainant who
| IN May, 1870, after the maturity Of the note
proceeded to foreclose the mortgage in the
| State court, when for the first time it was dis
covered there was mistake in the description
(pf fho ,a, S,G+I
quarter fixing the starting point in the de-
| scription had been omitted and it read cat the
southeast corner of section twelve, ETC." in
stead of ''at the southeast corner of the south
west quarter Of section twelve This was not
the property intended to be mortgaged and was
not owned by said Jordan and the complainant
| dismissed his suit without prejudice.
January ist 1853, sold and convey Conveyed tbs Gn
property by warranty deed to the defendant
''Vinacke," and in this deed inserted the fol-
lowing recital:
'Itl understood between the parties that
the above described premises are the same that
| y. b. Jordan mortgaged to Robert Morrison to
| secure his note to Bohrer, Morrison & Reeves,
which mortgage said Vinacke agrees to pay
Vinacke conveyed the same to defendant
| Kennedy by warranty deed, who took the
conveyance with full notice of the mortgage.
The defendants, Geo. +. levitt and Horace A.
| levitt, derive their title under and through
| the deeds from Jordan to Yinacke and from
Vinacke to Kennedy, but took their title with
out actual notice of said mortgage.
GILMAN, CLoUGH q LANE, for compPt.
| GEO. l.. & CHAL. e. OT1s, for def't.
| NELSON, J.
| The evidence in this case establishes the fact
OF mistake in the mortgage executed by Jor-
dan to Morrison, and a court of equity will,
| when appealed to, correct such mistake and
! reform the instrument SO as to express the in
| tent of the parties thereto. This is funda-
| mental rule of equity jurisprudence. and the
mistake being mutual the mortgage
the property intended as between
| the parties. If the title of the Jewetts as
bona fide purchasers, have intervened re-
| formation of the mortgage, will not be allowed
! to prejudice their titles. But if their rights
were subsequently acquired with notice, ac-
| tual or constructive, they are subject to Nor
| rlson's lien. The delay in bringing suit to
correct the mistake which shows laches on the
| part OF the complainant is satisfactorily &C
counted for.
| The recital in the deed from Jordan to
Vinacke is evidence against him, and it being
stated that mortgage had been given, Vinacke
| agreed to pay it. Such recital is intended as
! the agreement of the parties and esteps them.
| Vlnacke has thus admitted conclusively the
| lien of the morts age and assumed personal
| liability. It cannot be doubted that the doc
|
! ing title to the property under and through
Vlnacke d Kennedy priyies in estate, and
can be in no better situation than they are
from whom the title is obtained. Jackson Va.
! Carver, Peters SO, do $50; Wend. 209;
Storys Equity sec, 152, 165.
| The defendants, Geo. f. and Horace A..
Jewett, on investigation of the title would nee
essarlly discover the recital that the mortgage
was intended to cover the land described in the
| deed, and at least were required to make eu-
| quiry Of Jordan or Vinacke or Kennedy.
Il N. II. 560. The registry law of this State
does not require description of the property
| to be contained in the index book or reception
book. Sec. 1885, l57, pg. 126. The names are
! 1ndexed, 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 charged with knowledge of
all facts reclted therein. II they failed to do
SO it was negligence.
Ihe case of Shroyer VS.. Makeel, IS No., 264
has no application to the one at bar. In that
case the deed sought to be reformed was exc
cuted by married woman, jointly seized with
her husband. and the court placed the decision
upon the statutory regulation specifically point
| ing out how a married woman could bind her
self-and inasmuch as the deed, as executed
according to the statute,) did not convey the
land intended, reformation of the instru-
ment was beyond, the reach of equitable inter
positlon. 1He OlSUlnctlOn between reforming
| deed as TO the husband and as to q wife, is
clearly stated in the discussion of the case
above referred to. Vol. z, Conwald j., pg. 1873.
It's claimed the cause Of action is barred by
the statute OF limitations, enacting Glib. 3.
chap TT, p: 45l, sec. 81: ACTIONS can only be
commenced within the periods prescribed by
this chapter, after the cause of action accrues,
except where in special cases different limita-
tion is prescribed by statute" (Sec g. Within
SIX years. An action upon a contract etc
Is this an action upon contract?
The complainant by his bill seeks to fore
close mortgage and states therein that as exc
cuted it did not cover the property intended to
be mortgaged by the parties thereto and asks
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
Ii the instrument to be reformed was an
agreement to execute a mortgage the limita.
tion Of six years within which actions on cor
tracts can be commenced, might control. In
my view of the case, if any statutory limita
tions governs. it is that prescribed by section
II of chapter &C, viz: Every action to fore
plne