matter. Glass v. Hurlburt, 102 Mass. 2; Elder v. Elder, 10 Me. 80.

The opinion of the court was delivered by

START, J. The oratrix and defendant Johnson, on the 5th day of February, 1877, made an agreement by which she was to loan him seven hundred dollars and take as security therefor a mortgage of all his real estate. They applied to the town clerk of Chester to draw the mortgage and understood that it covered all the real estate then owned by Johnson, but by mistake the town clerk omitted from the description thereof one undivided half of a store. The mistake was not discovered until 1884. On the 23d day of December, 1878, Johnson's assignee in insolvency sold the property agreed to be mortgaged to Elmer D. Keys and N. R. Bardy, subject to the oratrix's mortgage. At the time Keys and Bardy made the purchase, they understood that the mortgage covered the entire property. In 1879 the oratrix obtained a decree of foreclosure against Johnson, Keys and Bardy. The property was not redeemed and the oratrix went into possession of all the premises owned by Johnson at the time the mortgage was executed and continued in the exclusive possession of the same until November 15, 1891, when defendant White, without the knowledge of the oratrix, moved into the tenement over the store. On the 9th day of April, 1891, Keys and Bardy conveyed the store property to defendant White. After the mistake in the oratrix's mortgage was discovered it was a subject of conversation in the neighborhood. White heard the rumor in regard to the defect in the oratrix's mortgage before he purchased the premises and he knew that the oratrix was in possession claiming title.

The power of the court of chancery to reform a mortgage so as to include land agreed to be mortgaged but omitted from the description therein by mutual mistake is not ques

tioned, and a mortgage may be so reformed as against subsequent purchasers of the omitted land unless it appears that they are bona fide purchasers for a valuable consideration without notice. Blodgett et al. v. Hobart et al., 18 Vt. 414; May v. Adams, 58 Vt. 74. Keys and Bardy and defendant White cannot be regarded as such purchasers. Keys and Bardy made their purchase understanding that the oratrix's mortgage covered the entire property and White knew at the time he made his purchase that the oratrix was in possession claiming title. He also knew of the rumor in circulation that there was a mistake in her mortgage, and if he did not know just what the mistake was it is his own fault; he heard sufficient to put him upon inquiry.

The parol testimony received subject to the defendants' exception was properly admitted and considered by the master upon the question of whether there was a mistake in fact, and upon the question of whether defendant White was a bona fide purchaser without notice. Tabor v. Cilley, 53 Vt. 487.

The oratrix has not slept upon her rights for an unreasonable time. The transaction has not become obscure so that it is difficult to do entire justice in the premises. The parties to the original transaction are living and the proof is full and clear. Defendant White has not been prejudiced by delay on the part of the oratrix in asserting her claim to the premises in question. He acquired his claimed title in 1891 with knowledge of the oratrix's claim to and possession of the property. Keys and Bardy took their title and allowed the time of redemption to expire, understanding that the oratrix's mortgage covered the property she now claims; and they and all others interested in the property allowed her to take possession of the entire property after the time of redemption had expired and to continue in the uninterrupted possession of it without making any specific claim to it until 1891. Under these circumstances it would be inequitable to

deny the oratrix relief. See the case of King et al. v. White & Hammond, Exrs., 63 Vt. 158, and the cases there cited. Defendant White cannot now be heard upon the question of whether Keys and Bardy should have been joined as defendants. He has made no such claim in his answer; the question is raised for the first time in this court. As a general rule, want of parties cannot be insisted upon at the hearing if not insisted upon in the answer. Bank of Bellows Falls v. Rutland and Burlington R. R. Co., 28 Vt. 470.

When the want of parties is not insisted on before the final hearing the court will proceed and give such relief as the orator is equitably entitled to, if it can do so without bringing in other parties. Cannon et al. v. Norton et al. 14 Vt. 178. In this case full relief can be given without the presence of Keys and Bardy. The oratrix does not seek a personal judgment against anyone; she seeks to reform and foreclose her mortgage. Keys and Bardy have parted with their entire right and title in the premises and they are not necessary parties. Miner v. Smith, 53 Vt. 551; Barton v. Kingsbury, 43 Vt. 640.

The pro forma decree of the court of chancery is affirmed and cause remanded.

MARY E. BATES v. E. W. HORNER ET AL.

RUTLAND COUNTY, 1893.

Before: TYLER, MUNSON, START AND THOMPSON, JJ.

Liability of municipal officers. Official act. Immaterial

error.

I. A municipal officer is not liable to a private individual for the result of an act which is strictly within his official powers and duties.

2.

A vote of village trustees, who are charged with the duty of maintaining the public streets, and who appoint a street commissioner to superintend the work on such streets, to purchase a ledge outside the village limits and locate a stone crusher at it for the purpose of providing stone to be used on the streets, is an official act; nor are the defendants made liable by the fact that they were acting as a committee of the trustees to observe the operation of the crusher.

3. Questions as to the admission of testimony are immaterial, provided, had all the evidence offered by the excepting party been admitted, and all that objected to by him rejected, it would still have been the duty of the court to direct a verdict against him.

Plea, the

Case for the negligence of the defendants. general issue. Trial by jury at the March term, 1892, Ross, CH. J., presiding. Verdict for the defendant. The plaintiff excepts. The opinion states the case.

George E. Lawrence and J. C. Baker for the plaintiff.

That the plaintiff has failed in her action against the municipality for this same injury is no bar to the present action.

Bennett v. Whitney, 94 N. Y. 302; Severin v. Eddy, 52 Ill. 139; Perry v. Averill, 37 Hun 363.

The location and operation of the stone crusher was not Stone v. Augusta, 48 Me. 127; McCord v. High, 24 Iowa 336.

a judicial act.

A public officer in the discharge of a public duty must exercise reasonable care. Adsit v. Brady, 4 Hill 630; Nowell v. Wright, 3 Allen 166; Hover v. Barkoof, 44 N. Y. 125; Stone v. Augusta, 46 Me. 127; Hayes v. Porter, 22 Me. 371; Bennett v. Whitney, 94 N. Y. 302; McCord v. High, 24 Iowa 336; Hicks v. Dorn, 34 N. Y. 47.

Butler & Moloney for the defendant.

This is substantially the same case as Bates v. Village of Rutland, 62 Vt. 178, and that decision must control here, for if the municipality is not liable, neither are its officers when acting for it. Weller v. City of Burlington, 60 Vt. 28; Parker v. Village of Rutland, 56 Vt. 224; Hill v. Boston, 122 Mass. 344.

The decision of public officers within the scope of their official authority cannot be the basis of a private action against them. Parker Public Health, 168; Heald v. Lang, 98 Mass. 581; Johnson v. Dunn, 134 Mass. 522; Dennison v. Clark, 125 Mass. 216.

The act of the trustees in locating the crusher was a judicial one. Winn v. Rutland, 52 Vt. 492; Cooley, Torts, p. 382; Sage v. Laurain, 19 Mich. 137; White v. Mansfield, 48 Vt. 20; Nor. Trans. Co. v. City of Chicago, 99 U. S. 635.

That the crusher was located outside the limits of the vil

lage is immaterial. Felch v. Gilman, 22 Vt. 38; Baxter y. Winooski T. P., 22 Vt. 114.

The opinion of the court was delivered by

START, J. The plaintiff's evidence tended to show that