Paxton v. Harrier ( 1849 )

The opinion of this court was delivered by

Rogers, J.

This is an ingenious attempt to get rid of the act of limitations. The avowed object of the real plaintiff is to reach Henninger through the medium of Paxton, the mortgagee, so as to compel him to pay for an alleged mistake in calculating the contents of a small tract of land, part of the mortgaged premises sold by Harrier, the mortgagor, to Henninger; the' deed calling for 11 acres 118 perches, instead of 26 acres, the real quantity. If suit had been brought by Harrier against Henninger, which is the appropriate remedy to try the right, the question would arise, namely, whether the alleged mistake, after the consummation of the contract, by delivery of the deed and payment of the purchase-money, could be corrected, a question about which there could be but little difficulty, and second, whether the error, if any existed, could be remedied after the claim was barred by the act of limitation, a point more plain, if possible, than the former. These questions, which are insurmountable, the plaintiff seeks to evade under cover of a suit, in the name of the mortgagee. The attempt is to do by indirection what cannot be done directly. This the law will not tolerate. Besides, to allow Paxton to recover against Henninger would be a wrong to Shuman, whom Paxton, for a valuable consideration, has released. For, on the recovery against him, Henninger would have a remedy over against Shuman, who was a subsequent purchaser from Harrier, on the principle settled, in Nailor v. Stanly, .10 S. & R. 450, Cowden’s Estate, 1 Barr, 277-8, and other cases. The tract conveyed to Shuman was primarily liable for the mortgage-money, as between Henninger and Shuman, and if the former is compelled to pay any part of the mortgage-money, he can recover the amount from Shuman. In addition, even if successful, -it would be a lame victory, as Harrier cannot, by any possibility, receive any benefit from it. For, if Shuman is compelled to pay, Harrier must respond to him. Henninger, in the event of a recovery, may sustain suit, either against Shuman or Harrier. If the former, Harrier would be liable to Shuman; if the latter, to Henninger. The owners, in neither case, have any defence. Suppose Paxtourecovers against Henninger, and Henninger brings suit against Harrier; what defence would he have ? Certainly none, for unquestionably Henninger, the vendee, would have a prima facie case' against Harrier, the vendor, inasmuch as the land of the former had been taken to satisfy a mortgage which the latter was bound to pay. To meet this, he would be drawn to take the ground that there was a mistake in the quantity of the land; and this would raise precisely the question he seeks to avoid, namely, that the mistake, under the circumstances, cannot he corrected, and that the claim, if any at one time existed, is barred by the act of limitation.

Judgment affirmed.