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the Arnolds for the leasing of the premises, had reference solely to the leasing of the right to quarry stone upon the same, and that the Arnolds, to whom the plaintiff had left the preparing of the lease, had fraudulently drawn it in the form in which it was executed, so as to secure the exclusive possession of the whole tract, and had imposed it upon the plaintiff, who was ignorant of the forms and effect of such instruments, and that the Arnolds now claimed that the same gave them an exclusive enjoyment of the premises for all purposes for the term of the lease that a part of the premises was land used for farming purposes and important as such to the plaintiff, but of no importance for quarrying purposes--and that the plaintiff in leasing the quarry had expected to derive large profits from the percentage to be paid him by the Arnolds, which was the only form in which rent was paid for the use of the land; but that the Arnolds, before the conveyance to Burr, and, since the conveyance, the latter, had almost wholly neglected to work the quarries, so that a very inconsiderable and inadequate sum had been received by him, and prayed that the lease be canceled, and the defendants required to release the premises to him, or that it be corrected so as to limit the right conveyed by it to that of quarrying alone, and that the defendants be enjoined from cutting certain timber growing on the premises, which it was alleged that they claimed the right under the lease to cut. The bill was dated July 31, 1857.

The case was referred to a committee, who found that the lease was drawn in accordance with the intentions of the parties, in all respects except as to the extent of the occupation which the lessees were to have during the term, as to which it was found that there was no agreement, as a matter on which their minds actually met, except that the lessees were to have the exclusive occupancy so far as the same should be necessary for the purpose of quarrying stone on the land demised; that the plaintiff did not know or suspect that he was conveying any more extensive right than this, while the lessees intended to have, and understood that they were to have, the exclusive occupation of the premises during the term. The committee also found that the plaintiff was a man of dull apprehension and extremely ignorant of the forms of transacting business, especially by writings, and that the Arnolds

were men of intelligence and well acquainted with the ordinary forms of doing business; that when proposing to draw the lease themselves the Arnolds stated to the plaintiff that they were acquainted with the forms of drawing leases for quarrying purposes in Haddam, where the Arnolds resided; and that the lease as drawn contained provisions with regard to the exclusive possession of the premises not usually inserted in the Haddam leases referred to. The committee found, however, no positive evidence of actual fraud, but reported that if the court should be of opinion that by the true construction of the lease the lessees were to have the exclusive occupation of the premises during the whole term, and were under no legal obligation to work the quarry at all, but were to work it or not at their discretion, there was a gross inadequacy of consideration for the lease, and from this and the inequality of capacity between the parties, he found that there was constructive fraud on the part of the defendants in procuring the lease from the plaintiff; and that, if such was not the legal construction of the lease, he did not find such fraud. It was further found that the defendants disclaimed all right to cut the timber growing on the premises except for quarrying purposes, and that they had not unreasonably neglected to work the quarries; also that Burr, at the time of taking his conveyance, had no notice of any agreement between the plaintiff and the Arnolds different from that expressed by the lease.

On the facts thus found the case was reserved for the advice of this court.

CHAPMAN and CLARK, for the plaintiff.

1. The report shows actual fraud on the part of the Arnolds. Their relation to the plaintiff was a confidential one. They had solicited the privilege of drafting the lease and he had intrusted it to them: 2 Swift Dig. 54; Miller v. Wells, 23 Conn. 21, 33; 1 Sto. Eq. Jur., §§ 217, 218. They withheld from the plaintiff an explanation, which in the circumstances they were bound to have made, of the peculiar character of the lease and of its effect, which they fully understood: 1 Sto. Eq. Jur. §§ 308, 309, Story v. Norwich R. R.,

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24 Conn. 94, 113; Roberts on Frauds, 129. The plaintiff was a weak minded man, not conversant with the forms of business. The Arnolds took a fraudulent advantage of his condition in this respect: 2 Swift Dig. 63, 64; 1 Powell on Cont 31; 2 Id. 158; 1 Story Eq. Jur. § 242.

2. The inadequacy of consideration, taken in connection. with the other circumstances, amounts to constructive fraud. On the facts stated by the committee and from which the committee has contingently found fraud, the court should find fraud: 1 Sto. Eq. Jur., § 246; Newland on Cont., 358; 2 Powell on Cont., 151, 157.

3. The minds of the parties never met on this contract, at least so far as the point in controversy is concerned. Hence, no legal obligation grows out of the contract: 1 Powell on Cont., 9.

TYLER and CULVER, for the defendants.

1. There can be no relief on the ground of actual fraud, for it is found that none existed.

2. Nor on the ground of mistake, since the mistake was not mutual, and therefore there would be no actual agreement to correct the written one by. If the plaintiff never agreed to the terms of the contract as drawn, the Arnolds equally never agreed to it as he now seeks to make it: 2 Swift Dig., 56. It would be intolerable if a contract could be set aside, or a title broken up, merely because, in the absence of all fraud or misrepresentation, one party understood the written contract incorrectly. So far as the timber is concerned, it is expressly found that we disclaim all right to take it except for quarrying purposes. It would be waste to cut it for any other purpose: Rev. Stat., tit. 1, § 284.

3. Nor on the ground of constructive fraud. This fraud is found by the committee only in case the court shall be of opinion that the lessees were not bound to quarry stone under the lease. It is clear that they are so bound. They hire the quarry on shares. The rent is payable only by a share of the profits. There is a clear implied agreement to work the quar ries to a reasonable extent. If it were not so, yet the court, can not grant relief on the ground of such constructive fraud,

because the bill does not allege it, and the decree must follow the bill: Sto. Eq. Pl., § 257; Gaylord v. Couch, 5 Day, 223; Skinner v. Bailey, 7 Conn. 496; Crocket v. Lee, 7 Wheat. 522; Carneal v. Banks, 10 Id. 181; Piatt v. Vattier, 9 Pet. 405; Knox v. Smith, 4 How. 298.

4. At any rate the court will not grant the relief against the defendant Burr, who is a bona fide purchaser for a valuable consideration, without notice of any equity in favor of the plaintiff. He has the legal title, and an equal equity, and therefore stands better than the plaintiff: 1 Sto. Eq. Jur., $ 57a.

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 ont 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 continnance 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 that he 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 allega

tions 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 that 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 prem– ises 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 valua ble 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 that we are strongly inclined 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 par.

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