Storrs, C. J.
We are of the opinion that on the facts found by the committee in this case, in connection with the allegations of the bill, the plaintiff is not entitled to relief against any of the defendants. He prays for a cancellation of the lease set out in the bill, and a release to him by the defendants of all their right and title in the leased premises, or that the lease may be corrected so as to be limited to the purpose of quarrying only, and that the defendants may be enjoined to work the quarries in the demised premises in a judicious and proper manner, with such efficiency that the plaintiff may, during the continuance of the lease, receive annually a reasonable rent for the use of said quarries, and that they may also be enjoined against cutting or carrying away any of the wood and timber growing upon said premises, and from doing any act inconsistent with the true meaning of said lease so to be corrected.
It appears that more than three years after the lease was executed and recorded, the defendants Samuel and Isaac Arnold conveyed all their interest in the demised premises to the other defendant Burr. If that is to be deemed a conveyance for a valuable consideration paid by the latter, and without notice on his part of the facts which are claimed by the plaintiff to entitle -him to relief, we are clearly of the opinion that as against Burr no such relief can be granted, on the ground thathe has the legal title, and at least an equal equity with the plaintiff, which, by a familiar rule of equity, must prevail over the merely equitable title of the plaintiff. The allegations of the bill on this subject, and consequently the finding of the committee which conforms to those allegations, are perhaps too general to justify us in the conclusion, either that a valuable consideration was paid by Burr for [623]*623that conveyance, or that he had no notice of the facts relied on by the plaintiff. Although it was not questioned on the argument, but assumed by the counsel on both sides that he paid such a consideration and had no such notice, neither of these facts is either alleged or denied in the bill. There is apparently no particular answer filed in the case, and consequently the hearing must be deemed to have been had upon a general denial of the facts stated in the bill; and such a denial would not embrace an averment of the payment by Burr of -a valuable consideration or of a want of notice. The bill states that, on the day of the conveyance to him, he mortgaged the premises to the Arnolds to secure the payment of three thousand dollars and interest thereon, and the committee finds that the latter transferred their interest in the premises to Burr and that he mortgaged the same back to them at the time and in the manner set forth in the bill, and that Burr, at the time of receiving said transfer, had no notice of any other or different agreement between the Arnolds and the petitioner than that set forth in the lease. If Burr, at the time of the assignment to him, only mortgaged back the premises for the whole consideration of it, or if he paid only a part of the consideration and mortgaged them back to secure the residue, he would not, in the first case, stand in the situation of a purchaser for a valuable consideration, having paid no money, or, in the latter case, of a purchaser to any greater extent than the amount which he then actually paid ; and it would seem to be the fair import of the finding that such mortgage was given for the security of the whole or a part of such consideration. In regard to the finding on the subject of notice to him, it is to be regarded or not by us as the fact of such notice is or is not to be deemed by us to be fairly in issue on the pleadings in the case. Those pleadings are so loose and indefinite thatwe are stronglyinclined to think that the decision of the case should not be placed on the ground that Burr was a purchaser without notice. And we are the more inclined not to do so, because we are satisfied that, were this a case only between the original parties to the lease, the plaintiff is not entitled to any relief.
[624]*624As the fraud or mistake complained of by the plaintiff did not take place in, the original making of the contract which was afterwards professed to be reduced to writing by the instrument of lease, but only in the expression of the terms of the contract as embodied in that instrument, the plaintiff clearly is .not entitled to an entire cancellation of the lease, or a release from the Arnolds of their right and title to the leased premises. The most that the plaintiff can claim is, not that the real contract shall be annulled, but that the instrument embodying it shall be corrected so as to express truly such real contract. The first particular in which the bill alleges that the lease in this case did not conform to the real agreement between the parties, is, that the lease gives to the Arnolds the absolute right, during the term, to the exclusive possession or occupation of the premises described in it, and not the right merely of getting out or quarrying the stone on those premises. We did indeed decide, in Burr v. Spencer, (26 Conn., 159,) that the terms of the lease now in question do not restrict the lessees to the right of occupying the premises for the sole purpose of getting out and quarrying the stone in the land. But in the present case it is not found that they have ever used, or claimed or intend to use, the land for any other than that purpose; nor does it appear that they have ever been requested by the plaintiff or refused to make any correction of the lease. And under these circumstances we have held that a court of equity will not, without any necessity, in the exercise of the discretion by which they will be governed in such eases, interpose in the manner here claimed. Thompsonville Scale Co. v. Osgood, 26 Conn., 16. It is furthermore decisive on this point, that it- is not found that there -was any mutual mistake between the parties in regard to the extent or character of the occupation which the lessees were designed to have of the leased premises. Without such mistake the plaintiff can not claim to have the lease corrected ; for, if it were made to conform to his own exclusive understanding as to its terms, it would obviously vary from that of the other party, and therefore would not correspond with the real agreement between them, or, in [625]*625other words, with any matter upon which their minds actually met. This of course would be not a correction of an agreement, but a substitution of a new one. On this ground the plaintiff is precluded from the right to have the lease corrected in this particular. For it is also found that, although the plaintiff, when he executed the lease, did not know or suspect that he was conveying any greater right or privilege than the occupancy of the land so far as it should be necessary for the purpose of quarrying the stone in it, the lessees intended to have, and understood that they were to have, the exclusive right of occupying it unrestrictedly during the term. To the claim that the lease should be corrected so that the lessees and their assigns should be expressly restricted from cutting or carrying away from the land the timber and wood growing or standing upon it, it is a sufficient answer, in the first place, that it is neither alleged in the bill nor found by the committee that such a restriction was any part of the original agreement.
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Storrs, C. J.
We are of the opinion that on the facts found by the committee in this case, in connection with the allegations of the bill, the plaintiff is not entitled to relief against any of the defendants. He prays for a cancellation of the lease set out in the bill, and a release to him by the defendants of all their right and title in the leased premises, or that the lease may be corrected so as to be limited to the purpose of quarrying only, and that the defendants may be enjoined to work the quarries in the demised premises in a judicious and proper manner, with such efficiency that the plaintiff may, during the continuance of the lease, receive annually a reasonable rent for the use of said quarries, and that they may also be enjoined against cutting or carrying away any of the wood and timber growing upon said premises, and from doing any act inconsistent with the true meaning of said lease so to be corrected.
It appears that more than three years after the lease was executed and recorded, the defendants Samuel and Isaac Arnold conveyed all their interest in the demised premises to the other defendant Burr. If that is to be deemed a conveyance for a valuable consideration paid by the latter, and without notice on his part of the facts which are claimed by the plaintiff to entitle -him to relief, we are clearly of the opinion that as against Burr no such relief can be granted, on the ground thathe has the legal title, and at least an equal equity with the plaintiff, which, by a familiar rule of equity, must prevail over the merely equitable title of the plaintiff. The allegations of the bill on this subject, and consequently the finding of the committee which conforms to those allegations, are perhaps too general to justify us in the conclusion, either that a valuable consideration was paid by Burr for [623]*623that conveyance, or that he had no notice of the facts relied on by the plaintiff. Although it was not questioned on the argument, but assumed by the counsel on both sides that he paid such a consideration and had no such notice, neither of these facts is either alleged or denied in the bill. There is apparently no particular answer filed in the case, and consequently the hearing must be deemed to have been had upon a general denial of the facts stated in the bill; and such a denial would not embrace an averment of the payment by Burr of -a valuable consideration or of a want of notice. The bill states that, on the day of the conveyance to him, he mortgaged the premises to the Arnolds to secure the payment of three thousand dollars and interest thereon, and the committee finds that the latter transferred their interest in the premises to Burr and that he mortgaged the same back to them at the time and in the manner set forth in the bill, and that Burr, at the time of receiving said transfer, had no notice of any other or different agreement between the Arnolds and the petitioner than that set forth in the lease. If Burr, at the time of the assignment to him, only mortgaged back the premises for the whole consideration of it, or if he paid only a part of the consideration and mortgaged them back to secure the residue, he would not, in the first case, stand in the situation of a purchaser for a valuable consideration, having paid no money, or, in the latter case, of a purchaser to any greater extent than the amount which he then actually paid ; and it would seem to be the fair import of the finding that such mortgage was given for the security of the whole or a part of such consideration. In regard to the finding on the subject of notice to him, it is to be regarded or not by us as the fact of such notice is or is not to be deemed by us to be fairly in issue on the pleadings in the case. Those pleadings are so loose and indefinite thatwe are stronglyinclined to think that the decision of the case should not be placed on the ground that Burr was a purchaser without notice. And we are the more inclined not to do so, because we are satisfied that, were this a case only between the original parties to the lease, the plaintiff is not entitled to any relief.
[624]*624As the fraud or mistake complained of by the plaintiff did not take place in, the original making of the contract which was afterwards professed to be reduced to writing by the instrument of lease, but only in the expression of the terms of the contract as embodied in that instrument, the plaintiff clearly is .not entitled to an entire cancellation of the lease, or a release from the Arnolds of their right and title to the leased premises. The most that the plaintiff can claim is, not that the real contract shall be annulled, but that the instrument embodying it shall be corrected so as to express truly such real contract. The first particular in which the bill alleges that the lease in this case did not conform to the real agreement between the parties, is, that the lease gives to the Arnolds the absolute right, during the term, to the exclusive possession or occupation of the premises described in it, and not the right merely of getting out or quarrying the stone on those premises. We did indeed decide, in Burr v. Spencer, (26 Conn., 159,) that the terms of the lease now in question do not restrict the lessees to the right of occupying the premises for the sole purpose of getting out and quarrying the stone in the land. But in the present case it is not found that they have ever used, or claimed or intend to use, the land for any other than that purpose; nor does it appear that they have ever been requested by the plaintiff or refused to make any correction of the lease. And under these circumstances we have held that a court of equity will not, without any necessity, in the exercise of the discretion by which they will be governed in such eases, interpose in the manner here claimed. Thompsonville Scale Co. v. Osgood, 26 Conn., 16. It is furthermore decisive on this point, that it- is not found that there -was any mutual mistake between the parties in regard to the extent or character of the occupation which the lessees were designed to have of the leased premises. Without such mistake the plaintiff can not claim to have the lease corrected ; for, if it were made to conform to his own exclusive understanding as to its terms, it would obviously vary from that of the other party, and therefore would not correspond with the real agreement between them, or, in [625]*625other words, with any matter upon which their minds actually met. This of course would be not a correction of an agreement, but a substitution of a new one. On this ground the plaintiff is precluded from the right to have the lease corrected in this particular. For it is also found that, although the plaintiff, when he executed the lease, did not know or suspect that he was conveying any greater right or privilege than the occupancy of the land so far as it should be necessary for the purpose of quarrying the stone in it, the lessees intended to have, and understood that they were to have, the exclusive right of occupying it unrestrictedly during the term. To the claim that the lease should be corrected so that the lessees and their assigns should be expressly restricted from cutting or carrying away from the land the timber and wood growing or standing upon it, it is a sufficient answer, in the first place, that it is neither alleged in the bill nor found by the committee that such a restriction was any part of the original agreement. But, in the second place, if it was, such an express restriction would be wholly unnecessary in order to prevent the commission of those acts, and would therefore be superfluous ; for it is provided by the 284th section of the act for the regulation of civil actions, (Rev. Stat., tit. 1,) that “ every person who, having no greater interest in real estate than an estate for years, or for life, created by the act of the parties and not by the act of the law, shall commit waste upon the premises, beyond what tenants for years or life, created by operation of law, may do, shall be liable to the party injured in an action on the case, unless he is expressly authorized by the contract under which such interest is created to do the acts complained of,” As we have no doubt that under this statute the lessees of •the plaintiff and their assigns would be liable, as they would clearly be if their estate had been created by operation of law, for cutting or carrying away the timber and wood growing upon the land demised, it is quite unnecessary that there should be any reformation of the lease in this respect. If any such waste should be meditated it would now be a proper ground for an injunction. It is not however alleged [626]*626in the bill that the lessees have ever committed or meditated such waste. Indeed, it is stated that they have never claimed the right to do so; and, in regard to the defendant Burr, the allegation in the bill that he has done or threatened such waste is expressly negatived. It is also found that all the respondents have disclaimed any right to cut or use the wood on the premises except for quarry purposes, and for those purposes their right to do so has not been questioned. This constitutes a decisive answer against the claim for a correction of the lease and the granting of an injunction in regard to said wood and timber. It is however claimed by the plaintiff that he was induced to enter into the contract by the fraud of the lessees. It would be sufficient to say that no fraud, as it respects the making of the contract, is alleged in the bill. All the averments of fraud in it respect only the reducing of the contract to writing; and, as already remarked, the latter kind of fraud would be a ground only for the correction of the instrument, and not its cancellation. As therefore the bill does not state any fraud which would justify the annulling of the contract, the finding in regard to such fraud, if it would otherwise be sufficient for that purpose, should be rejected, as it is not founded on any allegations in the bill. If however such were not the case, we think that the report of the committee discloses no fraud, either actual or constructive, for which the lease should be annulled. All actual fraud is negatived. In regard to constructive fraud, the committee finds that there was such fraud on the part of the lessees in procuring the lease from the plaintiff, if, by the true construction of the lease, the lessees were to have the exclusive occupation of the leased premises, and were under no legal obligation to work the quarries in it at all, but were at liberty to work them or not at their option. And they report that they find such constructive fraud, in that case, from the fact that there would be a gross inadequacy of consideration for the lease, and from the relative inequality of capacity between the plaintiff and the lessees. It is generally the province of a committee to present the facts upon which the court are to decide whether [627]*627fraud is constructively to be inferred, rather than to find whether such fraud exists. But, as the fraud is here found hypothetically only on the facts presented, it becomes necessary for us to decide whether, by the true construction of this lease, the lessees were bound to work the quarries or had a discretion on the subject. We are of the opinion that, as the rent reserved in the lease was a certain fixed proportion of the price of the stone which the lessees might get out of the land and sell, to be paid to the lessor in a reasonable time after it should be sold and paid for, the lessees were under an obligation to improve the quarries in a reasonable manner during the term of the lease. The case is analogous to the letting of land upon shares, as it is termed, where it would hardly be claimed that it is optional with the lessee whether he will cultivate the land or not. The very nature of the contract in these cases implies that the property leased is to be cultivated for the mutual benefit of the lessor and lessee. This being the ease there was no constructive fraud on the part of the lessees according to the finding of the committee. It is further found that the Arnolds, while in the occupation of the premises, did not unreasonably neglect to work the quarries, and the allegation in the bill that Burr, the other defendant, has been guilty of neglect in that respect is also found untrue. We therefore see no ground or occasion for the injunction prayed for in regard to the working of the quarries.
We therefore advise that the petition be dismissed.
In this opinion the other judges concurred.
Bill dismissed.