By the Court, Ingraham, P. J.
. So far as this judgment directs the reformation of the bond by striking out portions of it, it was erroneous. There was no evidence to show that the bond was not drawn in exact conformity to the agreement made be'tween the parties, previously. On the contrary, the complaint alleges that the bond was drawn according to the agreement between the parties. It is clear that -both obligor and obligee understood that the bond should contain the provisions which were ordered to be stricken out. The reason given for reforming the bond is that the plaintiff employed a lawyer, who gave him bad advice, and who thereby deceived him as to his rights, and thus induced him to .execute the bond.
[287]*287Such a ground furnished no authority to alter the contract of the parties. The authority which a court of equity has to reform a written instrument does not extend to any alteration of a contract, but only to making the contract in which a mistake has been made, correct, by conforming it to what was actually agreed upon between them.
In Leavitt v. Palmer, (3 N. Y. Rep. 19,) Bronson, J., in referring to the rules as to reforming a deed, says: “ If we could see that there had been a mistake in drawing up the deed, it could not be reformed without filing a bill for that purpose. But what is, if possible, more conclusive, there is not a particle of evidence to show that there was any mistake or accident in preparing the deed, or that it is not just what the parties intended it should be; and it could not be reformed, if a bill had been filed for that purpose. It is true the parties intended to secure the original liability of the bank, but so far as it appears, they intended to do it in the very way it was. done, and that way is illegal. If they mistook the law, we cannot grant relief by making a new contract for them.”
Such is precisely this case. The parties have made their contract just as they agreed to. They mistook the law, and they cannot be relieved by our. making a new contract for them. Their rights respectively must be settled upon the contract as they made it, subj ect to such defenses as the law allows.
So in Stoddard v. Hart, (23 N. Y. Rep. 556,) it was held that where everything agreed upon was done, equity will not make a new contract. In Kent v. Manchester, (29 Barb. 595,) the rules applicable to such cases are stated to be that the mistake must be proved; that it must have been a mutual mistake; that the mistake must be of fact and not of law; and the real contract must be proved. Under these rules, this' bond could not have been reformed as asked for.
Uor is the fact of bad advice being given to the plain[288]*288tiff, and followed by him, any ground for altering the provisions contained in that bond. Courts do not relieve from acts done under a false knowledge of the facts, though under a mistake of the law. (Dupre v. Thompson, 4 Barb. 279. Gilbert v. Gilbert, 9 id. 532. Arthur v. Arthur, 10 id. 9. Nevius v. Dunlap, 33 N. Y. Rep. 676.) The parties must be left to1 other remedies founded on fraud, if it existed; or, if relief can be granted in any case, for mistake of the law, founded on the fact that the adverse party had parted with nothing of any real value. (Champlin v. Laytin, 6 Paige, 189.)
Independent of this quéstion of reformation, there is another, upon which it is necessary to pass, in the decision of this appeal. That is, whether there was any defect in the title, such as the parties supposed to be the case, when the bond was prepared. It is conceded that the boundaries in the conveyance did not include the whole of the lot sold; nor did the decree of sale include any more than was covered by the deed. All the parties interested in the portion of the lot which was outside of the boundary were made parties to the partition proceedings. Under that decree the master sold the whole lot and gave a deed therefor, receiving the purchase money. This money was distributed among the parties. Charlotte E. Fogal, the ancestor of the two infant children, whose share is the only one not released, received her share of the proceeds of the estate, including the portion of the lot which belonged to her from another source. The question then arises, whether Mrs. Fogal, having received her share of the proceeds of this land, is not concluded thereby, and estopped from claiming to recover the property from the purchaser. If she was so estopped during her life, her chil- • dren can have no estate since her death, in these premises.
It has been held that where two persons made partition between them of lands in which one party only had a life estate, and after the partition the interest in the fee de[289]*289scended to the one holding the life estate, who subsequently sold the part allotted in partition, such sale estopped the party selling from claiming any interest in the part, allotted to the other. (Baker v. Lorillard, 4 N. Y. Rep. 257.) So a person having the legal title to land,- who acquiesces in the sale by another, if he has encouraged the sale, is estopped from asserting, afterwards, his title against the purchaser. (Storrs v. Barker, 6 John. Ch. 166.)
In Mount v. Morton, (20 Barb. 123,) it was held that tenants in common who acted separately, claiming to own separate parcels of the tract, and conveyed such separate parcels, receiving pay therefor, were estopped from claiming as tenants in common, and that a previous partition would be presumed. Mitchell, J., says: “If the owners were misled as to the law, and' supposed they owned the fee, they ought not the less to be estopped,“as they by their acts led others to purchase, under the same belief, and they have each received nearly, if not quite, the same value as they would have received if they had sold the reversion in one fourth of each lot.”
In Rider et al. v. The Union India Rubber Co., (4 Bosw. 169,) it was held, in regard to personal property, that if a person permitted the same to be sold, and acquiesced in the payment therefor, and permitted the purchaser to take possession, he was estopped from afterwards claiming title to the property so sold.
In Brewster v. Baker, (16 Barb. 613,) one Thompson sold a boat belonging to him and others jointly. They knew of the sale, and made no objection, and gave no notice to „ the contrary, but received from Thompson a portion of the purchase money paid to him. They were held estopped from claiming, against - the purchaser, to have any title thereto. The court say: “It is a well established principle that where the owner of property stands by and sees another sell it as his own to sJbona fide purchaser, and [290]*290makes no objection, and gives no notice of Ms rights, he will be held to have sanctioned the sale, and will not be permitted to assert his title, afterwards, as against such purchaser. And the same rule, I apprehend, prevails where the owner is informed of a sale of his property by another and does- not object to it, or give the purchaser notice of his rights, but permits such purchaser to pay the purchase money as it becomes due to the vendor, and receives a portion of it from the vendor.”
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By the Court, Ingraham, P. J.
. So far as this judgment directs the reformation of the bond by striking out portions of it, it was erroneous. There was no evidence to show that the bond was not drawn in exact conformity to the agreement made be'tween the parties, previously. On the contrary, the complaint alleges that the bond was drawn according to the agreement between the parties. It is clear that -both obligor and obligee understood that the bond should contain the provisions which were ordered to be stricken out. The reason given for reforming the bond is that the plaintiff employed a lawyer, who gave him bad advice, and who thereby deceived him as to his rights, and thus induced him to .execute the bond.
[287]*287Such a ground furnished no authority to alter the contract of the parties. The authority which a court of equity has to reform a written instrument does not extend to any alteration of a contract, but only to making the contract in which a mistake has been made, correct, by conforming it to what was actually agreed upon between them.
In Leavitt v. Palmer, (3 N. Y. Rep. 19,) Bronson, J., in referring to the rules as to reforming a deed, says: “ If we could see that there had been a mistake in drawing up the deed, it could not be reformed without filing a bill for that purpose. But what is, if possible, more conclusive, there is not a particle of evidence to show that there was any mistake or accident in preparing the deed, or that it is not just what the parties intended it should be; and it could not be reformed, if a bill had been filed for that purpose. It is true the parties intended to secure the original liability of the bank, but so far as it appears, they intended to do it in the very way it was. done, and that way is illegal. If they mistook the law, we cannot grant relief by making a new contract for them.”
Such is precisely this case. The parties have made their contract just as they agreed to. They mistook the law, and they cannot be relieved by our. making a new contract for them. Their rights respectively must be settled upon the contract as they made it, subj ect to such defenses as the law allows.
So in Stoddard v. Hart, (23 N. Y. Rep. 556,) it was held that where everything agreed upon was done, equity will not make a new contract. In Kent v. Manchester, (29 Barb. 595,) the rules applicable to such cases are stated to be that the mistake must be proved; that it must have been a mutual mistake; that the mistake must be of fact and not of law; and the real contract must be proved. Under these rules, this' bond could not have been reformed as asked for.
Uor is the fact of bad advice being given to the plain[288]*288tiff, and followed by him, any ground for altering the provisions contained in that bond. Courts do not relieve from acts done under a false knowledge of the facts, though under a mistake of the law. (Dupre v. Thompson, 4 Barb. 279. Gilbert v. Gilbert, 9 id. 532. Arthur v. Arthur, 10 id. 9. Nevius v. Dunlap, 33 N. Y. Rep. 676.) The parties must be left to1 other remedies founded on fraud, if it existed; or, if relief can be granted in any case, for mistake of the law, founded on the fact that the adverse party had parted with nothing of any real value. (Champlin v. Laytin, 6 Paige, 189.)
Independent of this quéstion of reformation, there is another, upon which it is necessary to pass, in the decision of this appeal. That is, whether there was any defect in the title, such as the parties supposed to be the case, when the bond was prepared. It is conceded that the boundaries in the conveyance did not include the whole of the lot sold; nor did the decree of sale include any more than was covered by the deed. All the parties interested in the portion of the lot which was outside of the boundary were made parties to the partition proceedings. Under that decree the master sold the whole lot and gave a deed therefor, receiving the purchase money. This money was distributed among the parties. Charlotte E. Fogal, the ancestor of the two infant children, whose share is the only one not released, received her share of the proceeds of the estate, including the portion of the lot which belonged to her from another source. The question then arises, whether Mrs. Fogal, having received her share of the proceeds of this land, is not concluded thereby, and estopped from claiming to recover the property from the purchaser. If she was so estopped during her life, her chil- • dren can have no estate since her death, in these premises.
It has been held that where two persons made partition between them of lands in which one party only had a life estate, and after the partition the interest in the fee de[289]*289scended to the one holding the life estate, who subsequently sold the part allotted in partition, such sale estopped the party selling from claiming any interest in the part, allotted to the other. (Baker v. Lorillard, 4 N. Y. Rep. 257.) So a person having the legal title to land,- who acquiesces in the sale by another, if he has encouraged the sale, is estopped from asserting, afterwards, his title against the purchaser. (Storrs v. Barker, 6 John. Ch. 166.)
In Mount v. Morton, (20 Barb. 123,) it was held that tenants in common who acted separately, claiming to own separate parcels of the tract, and conveyed such separate parcels, receiving pay therefor, were estopped from claiming as tenants in common, and that a previous partition would be presumed. Mitchell, J., says: “If the owners were misled as to the law, and' supposed they owned the fee, they ought not the less to be estopped,“as they by their acts led others to purchase, under the same belief, and they have each received nearly, if not quite, the same value as they would have received if they had sold the reversion in one fourth of each lot.”
In Rider et al. v. The Union India Rubber Co., (4 Bosw. 169,) it was held, in regard to personal property, that if a person permitted the same to be sold, and acquiesced in the payment therefor, and permitted the purchaser to take possession, he was estopped from afterwards claiming title to the property so sold.
In Brewster v. Baker, (16 Barb. 613,) one Thompson sold a boat belonging to him and others jointly. They knew of the sale, and made no objection, and gave no notice to „ the contrary, but received from Thompson a portion of the purchase money paid to him. They were held estopped from claiming, against - the purchaser, to have any title thereto. The court say: “It is a well established principle that where the owner of property stands by and sees another sell it as his own to sJbona fide purchaser, and [290]*290makes no objection, and gives no notice of Ms rights, he will be held to have sanctioned the sale, and will not be permitted to assert his title, afterwards, as against such purchaser. And the same rule, I apprehend, prevails where the owner is informed of a sale of his property by another and does- not object to it, or give the purchaser notice of his rights, but permits such purchaser to pay the purchase money as it becomes due to the vendor, and receives a portion of it from the vendor.”
The principles deducible from these cases, applied to this case, are amply sufficient to enable us to decide the questions arising therein.
The bond in question was payable if the title was made perfect within ten years. The property for which the bond was given in part payment was a lot on Front street, the rear part of which belonged to several persons in common, who were all parties to a suit for the partition of the same. In the decree the description of the property ordered to be sold did not include the rear of the lot. All the parties having any title to the said lot gave releases, excepting Charlotte E. Fogal. On the sale in partition the whole lot was sold,-and was purchased by a person through whom the plaintiff claimed title. Mrs. Fogal was paid, and receipted for, her share of the proceeds of the sale, but no release was' obtained from her, before her death. She therefore knew of the sale, made no objection thereto, but received full payment -for her share therein. I think there can be no doubt that her acts, in not objecting to the sale, and afterwards receiving payment for her share, estop her and her representatives from now claiming any interest in the said land, and that the sale of this lot under that particular proceeding is to be considered as conveying a good title to the whole lot, although not correctly described in the decree.
If Mrs. Fogal was thus estopped from making any claim, [291]*291her children have no right or title to the premises, and there is no defect in the title to be remedied.
[First Department, General Term,
June 6, 1870.
The title to the lot being perfect, the condition of the bond was fulfilled, and the plaintiff" entitled to recover the amount due thereby.
Although a mistake as to the law forms no ground for reforming a contract, yet where a party acting under a mistake of law or of fact does acts which mislead the adverse party, he is estopped, as well as if he was not acting under such mistake. (See Mount v. Morton, supra.)
The judgment should be affirmed. ■
Ingraham, P. J., and Geo. G. Barnard, Justice.]