Henry v. . Smith ( 1877 )

BrsuM, J.

As the indenture of lease is written, executed .and registered, the only' construction we can put upon it is, that it conveyed the whole term -for the consideration' of twenty-five dollars. That is admitted by the plaintiff, and hence he seeks to have the deed corrected so as to show that the consideration was the sum of twenty-five dollars annual-3y to be paid as rent during the continuance of the term. "We áre satisfied that such was the meaning of the parties to the lease and that therefore as between the plaintiff and Lynch, the immediate lessee, the correction of the deed could be made and so as to all subsequent assignees with notice. But the ultimate purchaser of the term, to-wit, Thomas'J. Smith against whom the relief is asked, is an as-signee for full value and without notice. In purchasing and for his own protection, he was bound to trace back his title through all the mesne conveyances, up to.the original lease made by the plaintiff. None of these furnished any notice ■of the mistake in the deed or that the lease was subject to .•an annual reutal. They all showed that the entire term of ainety-nine years was conveyed in consideration of the specific sum of twenty-five dollars in hand paid on the execution of the deed. The party seeking relief committed the 'mistake and is in default. The defendant is an innocent purchaser and is in no default. In such eases when one of the two parties must suffer, the loss must fall upon him who is in default. lie must abide by his own laches. 2 Sugden on Vendors 360, 362.

A jury trial was waived below and the Court found as a ■fact, that Francis Lynch and W. C, Smith had actual notice ■of the mistake in the deed and had paid rent, but that ’Thomas J. .Smith had no actual or other notice than what was contained in the several assignments.

The Court decided as a matter of law that the deeds of assignment operated as constructive notice to Thomas J. Smith. In that His Honor erred. The plaintiff is entitled to the relief he asked as to Francis Lynch and also to W. C. Smith, who is insolvent, if he desires it, but not as to Thomas J. Smith.

There is error. The judgment is reversed as to Thomas .J. Smith and affirmed as to Francis Lynch and W. C. Smith. The case is remanded.

Per Curiam. Judgment accordingly.