Cake v. Peet.

sion of the facts or of the legal operation of the deed. A party may be as much injured by a mistake of the scrivener in the language of the deed, arising from his want of skill in the law, as from a misdescription of the property conveyed, arising from his want of knowledge upon that subject. And a person unskilled in the technical language of conveyances might be as readily misled in the one case as in the other." And it must be equally true that if by reason of a want of knowledge upon the part either of the scrivener or the parties as to the descriptive words necessary to render a deed operative, land has not been conveyed which the grantor had received payment for, and had agreed and intended to convey, chancery will supply the omitted description. In Woodbury Savings Bank v. Charter Oak Ins. Co., 31 Conn., 517, it is said: "There was a mutual mistake as to the proper mode of filling out the papers on both sides. The application was made out in the wrong name and the policy was made to the wrong person. But there was no fraud or misrepresentation. The papers would have been made out right if they had known how to do it, and it is immaterial whether the mistake was one of fact or law."

If therefore there was an agreement by the grantor to sell and by the grantee to buy the ore bed; if the grantor intended to use, and both believed that he had used, apt words to convey it; and if by reason of the misconception of both as to the legal sufficiency of the terms of the written contract, or of their mistake in not incorporating therein the necessary descriptive expressions which were in the precedent parol one, the deed has failed to convey the property intended, an occasion for equitable relief is presented, of which under our Practice Act the defendant could avail himself in the present proceeding. He is entitled to the privilege of proving by parol that the foregoing hypothesis represents the truth; that he paid a valuable consideration for the ore bed; that ever after the conveyance the grantor permitted him as owner to enjoy all use of which the land was susceptible, and receive and retain as his own all income VOL. XLIX-64

Cake v. Peet.

in such years as any could be derived from it; and this by way of supplementing the light thrown upon the joint intent by a consideration of the paragraph in question in its relation to the next preceding one, and of the deed as a whole.

And if the grantor made declarations accompanying and constituting a part of the act of preparing, executing and delivering the deed, to the effect that he had received payment for and had agreed to convey a particular piece of land, and expressed his belief that his written language was sufficient for that purpose, we think they are admissible for the purpose of confining an expression, which in its present form may apply to several pieces of land, to the one piece which in the intent of grantor and grantee it was its office to convey; of supplying the true meaning if by mistake

none now exists.

Thus to remove an ambiguity existing because of an omission, or to correct a mistake, is quite within the power of a court of equity; and to do it upon the declaration of the grantor made when instructing the scrivener and when executing the deed, describing the particular portion of his estate which he had agreed to convey, and expressing his belief that his written language would convey it.

If upon the reception of the evidence objected to the deed shall be reformed in conformity with the defendant's prayer, the remaining question will cease to be pertinent; therefore we leave it undetermined.

The Superior Court is advised to receive the offered evidence.

In this opinion the other judges concurred.

Edwards v. Ide.

WILLIAM EDWARDS vs. CHARLES W. IDE.

A statute passed in 1881 provided that the August term of the Superior Court in Windham County should be held in Windham, provided that a convenient place for holding the court there should be furnished without expense to the county. Before this all the terms were by law held at Brooklyn. Held that until a place for holding the court had been furnished at Windham, and established by the actual holding of the court there, Brooklyn remained the proper place for the return of writs for the August term.

CIVIL ACTION, brought to the Superior Court in Windham County. Motion to erase the case from the docket; motion denied; plea to the jurisdiction; demurrer to the plea; demurrer sustained, and, the defendant not answering over, judgment rendered for the plaintiff, by Carpenter, J. Motion in error by the defendant. The case is fully stated in the opinion.

J. M. Lyon and T. E. Graves, for the plaintiff in error.

S. H. Seward, with whom was P. J. O'Leary, for the defendant in error.

PARDEE, J. The writ in this case is dated May 4th, was served May 5th, and is made returnable to the Superior Court to be holden at Brooklyn in Windham County on the 4th Tuesday in August, all in 1881.

The statute (Session Laws of 1877, chap. 69,) makes that a return day to that court at that place. The statute (Session Laws of 1881, chap. 94, sec. 6,) provides that "the term of the Superior Court for Windham County held on the 4th Tuesday in August in such year, shall be held at Windham, provided however that a convenient place for holding such court at Windham shall at all times be furnished without expense to the county." This statute went into effect on May 1st, 1881.

The defendant asked the court sitting at Windham on

Edwards v. Ide.

the 4th Tuesday in August, 1881, to erase the case from its docket, for the reason that the writ was returnable to it at Brooklyn. The court refused; he then filed a plea to the jurisdiction; the court overruled it and rendered judgment against him; he filed a motion in error.

The statute of 1881 rests upon a contingency; by it, if on the 4th Tuesday in August, 1881, some unnamed person or corporation shall provide a convenient place for the session of the court at Windham, without expense to the county, the court is to be there holden; if not, it is to sit at Brooklyn. It does not compel any person or corporation to provide such place; it does not require that it shall be tendered to the county, or be in readiness for use, until the day of session. Indeed, as there is no provision for a determination by any tribunal that such a place had been provided and was sufficient for the purpose, the fact could be established only by the judicial sanction involved in the action of the court in holding its session there.

Brooklyn then being the returning place for writs would not cease to be such until a place meeting all the requirements of the statute had been provided for the court at Windham; for the statute is not to be so interpreted that there shall be any day upon which a suitor has no certain place of return for the writ which issues upon his request; and, as it is not found, and is not averred even in the plea, that on May 5th, 1881, any place had been provided and established for the session of the court at Windham, Brooklyn had not then been affected by the statute, and a writ served upon that day was properly made returnable at that place.

There is no error.

In this opinion the other judges concurred; except CARPENTER, J., who, having tried the case in the court below, did not sit.

Johnson v. Olmsted.

49 509

60 379

CHARLES W. JOHNSON AND OTHERS vs. AARON G. OLM

STED AND OTHERS.

The statute (Gen. Statutes, p. 480, sec. 1,) provides that courts of equity may order a partition of real estate held in common, and (sec. 4,) may order a sale" when, in the opinion of the court, it can not be conveniently used by the parties in interest together and a sale will better promote the interests of the owners." Held to mean-when a sale will better promote the interests of the owners than a partition.

Every tenant in common is entitled to a partition, if practicable; if it is not, to a sale.

It is no legal objection to a sale that it will result in a reduced income from the property.

It is no objection to a sale that one of the interests is owned by a wife in fee with a tenancy by the curtesy in the husband. The right of both can be protected by the court in the money which will take the place of their share of the real estate.

CIVIL ACTION, for sale of real estate held in common; brought to the Superior Court in Hartford County, and heard before Carpenter, J.

The property was a piece of land on Main and Pearl streets in the city of Hartford, covered with buildings, and was owned by twelve persons, the petitioners owning one hundred and seventeen 144ths and the defendants twentyseven 144ths. The complaint alleged that partition was impracticable, and that the property could not conveniently be used by the owners together and a sale would better promote their interests. The defendants in their answer denied this and alleged that the property was in good condition and well leased; that the owners derived a larger income from their respective interests in it than they could from the money which would be produced by a sale; that it was increasing in value; and that it was not for the interest of either plaintiffs or defendants that it should be sold; also that one of the defendants was a married woman who owned her share in fee, while her husband, also a defendant, had an interest in her share as a tenant by the curtesy. The court made the following

finding of facts.

49 509 74 16