Hardin, P. J.
In the complaint no allegations of fraud or mistake are found in respect to the deed in question; nor does the evidence indicate, or the findings of fact present, any mistake or fraud in respect to the execution and delivery of the deed of the premises in question. In Story’s Equity Jurisprudence, in laying down the rule for guidance of courts of equity in setting aside, canceling, and directing to be delivered up agreements and other instruments, it is said, in section 695, vol. 2„ that the court will so do— “First, where there is actual fraud in the party defendant, in which the party plaintiff has not participated; secondly, where there is a constructive fraud against public policy, and the party plaintiff has not participated therein; thirdly, where there is a fraud against public policy, and the party plaintiff has participated therein, but public policy would be defeated by allowing it to stand; and, lastly, where there is a constructive fraud by both parties, but they are not in pari delicto.” In Stoddard v. Hart, 23 N. Y. 562, it is said; “If a writing does not truly express the agreement of the parties, if anything was omitted which was agreed to be inserted, or if anything was inserted contrary to their intention, equity will relieve against the mistake by reforming the contract.” In that case it was “not pretended that this understanding was to be expressed in any form of writing;” and it was therefore held that equity will not “reform the writing to make an agreement of a different effect from that which the parties intentionally entered into. ” In Nevius v. Dunlap, 83 N. Y. 676, it was held that “to entitle a party to a decree of a court of equity reforming a written instrument, he must show first a plain mistake, clearly [147] made'out, by satisfactory proofs. He must also show that the part omitted or inserted in the instrument was omitted or inserted contrary to the intent of both parties, and under a mutual mistake.” In Mills v. Lewis, 37 How. Pr. 422, it was said: “An instrument cannot be reformed on the ground of mistake by one of the parties to it. It must be a case of mutual mistake by both parties, where there is no question of fraud involved, to authorize a reformation of the alleged mistake.” This doctrine was stated in Story v. Conger, 36 N. Y. 676. The language of the court was, viz.: “No fraud, however, is suggested, nor is it alleged that a mutual mistake existed on the point in question. One of these allegations is indispensable in a complaint asking for a reformation of the contract.” In Wilson v. Deen, 74 N. Y. 536, RApallo, J„, in speaking of this rule, says: “The current of our authorities sustains the proposition that, both at law and in equity, one who sets his hand and seal to a written instrument, knowing its contents, cannot be permitted to set up that he did so in reliance upon some verbal stipulation, made at the time, relating to the same subject, and qualifying or varying the instrument which he thus signs. * * * It is only when, through fraud or mistake, a party has executed an instrument which he believes to be in accordance with the real agreement, but which is, in fact, different, that equity will relieve; and even then the mistake, as well as the agreement, must be made out by clear proof. ”
So far as the plaintiff’s case rests upon a reformation of the deed, we think it must fail. First. The complaint neither alleges a mistake or fraud. Secondly. The findings of the court do not present a case of mistake of fact or fraud in fact. Third. The evidence, when carefully examined and considered, does not warrant a conclusion that there was a mistake in fact on the part of the parties to the deed, or that there was any fraudulent practice which led to its execution. On the contrary, it appears that the intention of the grantor was to transfer the legal title to the property to the grantee. The ordinary and apt words of a warranty deed were used for such a purpose, and at the time of the execution of the deed the grantor declared his intention to vest the legal title in the grantee; and the testimony of Oipperly, the magistrate who witnessed the execution of the deed, and took the acknowledgment thereof, supports the inferences and intendments to be drawn from an inspection of the deed itself. He says: “When I got into the house the deed was showrn to me. There was no consideration expressed in the deed. I told them it was necessary to have some consideration in it, I thought. The old man replied: • Well, I don’t know as it is very particular how much, as he was giving it to his daughter. He had given one house and lot to his son, and he was going to give this to her,’—and finally decided to put in $500 as the consideration. He directed me to put that in; and I put it in, and then took the acknowledgment.” This evidence is not contradicted, and the strength of it is increased by the circumstance that the plaintiff, though present at the trial, was not sworn as a witness to contradict it. Rider v. Miller, 86 N. Y. 510. We think a proper case for reformation of the deed was not made out, and that the conclusion of law directing a reformation of the deed was erroneous, and the exception thereto well taken.
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Hardin, P. J.
In the complaint no allegations of fraud or mistake are found in respect to the deed in question; nor does the evidence indicate, or the findings of fact present, any mistake or fraud in respect to the execution and delivery of the deed of the premises in question. In Story’s Equity Jurisprudence, in laying down the rule for guidance of courts of equity in setting aside, canceling, and directing to be delivered up agreements and other instruments, it is said, in section 695, vol. 2„ that the court will so do— “First, where there is actual fraud in the party defendant, in which the party plaintiff has not participated; secondly, where there is a constructive fraud against public policy, and the party plaintiff has not participated therein; thirdly, where there is a fraud against public policy, and the party plaintiff has participated therein, but public policy would be defeated by allowing it to stand; and, lastly, where there is a constructive fraud by both parties, but they are not in pari delicto.” In Stoddard v. Hart, 23 N. Y. 562, it is said; “If a writing does not truly express the agreement of the parties, if anything was omitted which was agreed to be inserted, or if anything was inserted contrary to their intention, equity will relieve against the mistake by reforming the contract.” In that case it was “not pretended that this understanding was to be expressed in any form of writing;” and it was therefore held that equity will not “reform the writing to make an agreement of a different effect from that which the parties intentionally entered into. ” In Nevius v. Dunlap, 83 N. Y. 676, it was held that “to entitle a party to a decree of a court of equity reforming a written instrument, he must show first a plain mistake, clearly [147] made'out, by satisfactory proofs. He must also show that the part omitted or inserted in the instrument was omitted or inserted contrary to the intent of both parties, and under a mutual mistake.” In Mills v. Lewis, 37 How. Pr. 422, it was said: “An instrument cannot be reformed on the ground of mistake by one of the parties to it. It must be a case of mutual mistake by both parties, where there is no question of fraud involved, to authorize a reformation of the alleged mistake.” This doctrine was stated in Story v. Conger, 36 N. Y. 676. The language of the court was, viz.: “No fraud, however, is suggested, nor is it alleged that a mutual mistake existed on the point in question. One of these allegations is indispensable in a complaint asking for a reformation of the contract.” In Wilson v. Deen, 74 N. Y. 536, RApallo, J„, in speaking of this rule, says: “The current of our authorities sustains the proposition that, both at law and in equity, one who sets his hand and seal to a written instrument, knowing its contents, cannot be permitted to set up that he did so in reliance upon some verbal stipulation, made at the time, relating to the same subject, and qualifying or varying the instrument which he thus signs. * * * It is only when, through fraud or mistake, a party has executed an instrument which he believes to be in accordance with the real agreement, but which is, in fact, different, that equity will relieve; and even then the mistake, as well as the agreement, must be made out by clear proof. ”
So far as the plaintiff’s case rests upon a reformation of the deed, we think it must fail. First. The complaint neither alleges a mistake or fraud. Secondly. The findings of the court do not present a case of mistake of fact or fraud in fact. Third. The evidence, when carefully examined and considered, does not warrant a conclusion that there was a mistake in fact on the part of the parties to the deed, or that there was any fraudulent practice which led to its execution. On the contrary, it appears that the intention of the grantor was to transfer the legal title to the property to the grantee. The ordinary and apt words of a warranty deed were used for such a purpose, and at the time of the execution of the deed the grantor declared his intention to vest the legal title in the grantee; and the testimony of Oipperly, the magistrate who witnessed the execution of the deed, and took the acknowledgment thereof, supports the inferences and intendments to be drawn from an inspection of the deed itself. He says: “When I got into the house the deed was showrn to me. There was no consideration expressed in the deed. I told them it was necessary to have some consideration in it, I thought. The old man replied: • Well, I don’t know as it is very particular how much, as he was giving it to his daughter. He had given one house and lot to his son, and he was going to give this to her,’—and finally decided to put in $500 as the consideration. He directed me to put that in; and I put it in, and then took the acknowledgment.” This evidence is not contradicted, and the strength of it is increased by the circumstance that the plaintiff, though present at the trial, was not sworn as a witness to contradict it. Rider v. Miller, 86 N. Y. 510. We think a proper case for reformation of the deed was not made out, and that the conclusion of law directing a reformation of the deed was erroneous, and the exception thereto well taken.
2. Ought the deed to have been canceled and set aside? In considering this question, we must bear in mind that the complaint does not contain any averments of fraud in fact on the part of the grantee in obtaining the deed; nor is she charged with undue influence, or any other improper practice, to induce the execution and delivery of the deed to her. If we assume that there was a paroi agreement, as found by the trial judge, that the grantee was to care for, support, and furnish a home for the plaintiff, one-half of the time, during the remainder of his natural life, as a -consideration for the premises in question, and that that agreement was carried out for two years, and afterwards it was not observed and carried out in its exact tenor and spirit, yet [148] the breach thereof does not furnish a sufficient ground for canceling and annulling the deed. By the terms of that agreement, as found by the trial judge, its observance was not to be required until after the execution and delivery of the deed, and the performance thereof was entered upon by the grantee;, and the plaintiff enjoyed the performance of it for a period of two years or more, and, apparently, thereafter waived a strict performance of it, and for a time accepted a modified performance, by receiving the care, attention, and home in the family of the grantee, after she had left the premises in question. The omission to perform the oral stipulation or agreement is not sufficient, ground to set aside the deed, as there was no mistake of fact, or fraud. The-deed was delivered without any condition attached to the delivery, and the oral agreement, as appears in the findings, contains nothing to indicate that its full observance and completion were made a condition precedent to the-taking effect of the conveyance. Wilson v. Deen, supra; De Kay v. Bliss, 4 N. Y. St. Rep. 735. In the case just cited, it was said, viz.: “And when that, is the nature of the agreement entered into, and the act is not to precede the conveyance itself, the failure to perform the stipulation cannot be relied liponas a condition to annul that conveyance, but it will supply the legal groundwork of an action for damages for the non-performance of so much of the-agreement.” The respondent calls our attention to Bolen v. Bolen, 44 Hun, 362, and insists that it aids him in supporting the judgment in this case. We think otherwise. There the condition upon which the bond and mortgage •were given was that the wife and son should return to the husband. The wife-refused to permit the return of the son; and it was held that there had been a failure of the consideration of the mortgage. This cause differs very much from Quick v. Stuyvesant, 2 Paige, 83, referred to by the counsel for the respondent. That was one where the land was conveyed for the purposes of' opening a street, and there was no other consideration for it than the benefit which the grantor was to derive from the opening of this street, and by subsequent events, beyond control of both parties, the street could not be opened;, and a reconveyance of the land was decreed in equity. Hor do we think the case of McHenry v. Hazard, 45 N. Y. 580, aids the respondent. That case upholds the power of a court of equity to order a surrender and cancellation of written instruments obtained by fraud, or held for inequitable and unconscientious purposes. AVe are of the opinion that neither the evidence in the case nor the findings made thereon sustain the conclusion of law" to the effect that the deed should be given up and canceled.
3. Assuming that a paroi arrangement was made that the plaintiff should have a home, for one-half of the time, during the remainder of his" natural life, with his daughter, and that arrangement was made contemporaneous-with the execution and delivery of the deed, and that she received the deed with the promise to carry out that agreement, and furnished no other consideration to the plaintiff for the deed, and that the plaintiff, in accordance with, that agreement, enjoyed the privileges thereof for two years on the premises, and subsequently received, or was offered, a fulfillment thereof by the daughter and her husband, having himself consented to a modification thereof by receiving fulfillment at the home of a daughter, at another place than the-premises in question, we think there had been such a part performance of the-agreement as to take it out of the statute of frauds; and the plaintiff would be entitled, upon satisfying the court, by clear evidence, that such an arrangement was made, to a specific performance thereof, and if, for any reason, a specific performance cannot be had, to such damages as he sustains by reason of a breach thereof. Inasmuch as this is in the nature of a purchase price or consideration for the premises which he had voluntarily conveyed to his daughter, we see no reason why, as against her, the same may not be enforced, and, as against the premises while held by her husband and daughter under her will, with the like force and effect that might be given to a vendor’s lien for [149] purchase money unpaid. Neither the husband, nor daughter Ida, in virtue of the will of Lena, the daughter of the plaintiff, have any better title of interest in the land than Lena possessed at the time of her death. There was considerable evidence given upon the trial tending to show that the conveyance was made for the purpose of effectuating a gift of the premises. The trial judge refused so to find, however. If the paroi promise was made to support the plaintiff one-lialf of the time, as stated in the complaint and in the findings, as a consideration for the premises, we think that a court of equity has jurisdiction to enforce the same; or if, for any reason, the same cannot be specifically enforced, by reason of the changed situation of the parties, it may award damages for a breach thereof, and declare the same a lien upon the premises in question. Hence we do not agree with the position of the defendant, that, in the event of such an agreement -being found, the sole remedy of the plaintiff is an action- at law, for a breach of such an agreement, to recover damages. Hammond v. Cockle, 2 Hun, 496. However, as the views we have already expressed lead to a new trial, we forbear further comment upon the merit of the case, as, upon a new trial, further evidence may be given in respect thereto by either side. Judgment reversed on the exceptions, and a new trial ordered, with costs to abide the event. All concur.