Voorhees v. De Myer. VOORHEES and others v. De Myer. WHERE parties contract for the sale of land, for a gross sum or price, under a mutual mistake as to the quantity contained in the parcel sold, believing it to contain about a fourth more than its actual contents, and the vendee has taken possession, made valuable permanent improvements, and paid nearly all the price; equity will compel the vendor to convey the land actually owned by him, with a rateable deduction from the price for the deficiency. D. sold to G. by an executory contract, two lots of wild land, which by the survey and location thereof made for D. and others, contained 187 acres; the one intending to sell, and the other believing that he was buying, the lots as thus sur. veyed. It turned out, that in making such survey and location, the surveyor had extended and marked his line beyond the true boundary of the tract he was laying out, and had thereby included 43 acres in D.'s two lots, to which he never had any right or claim.-Held, that this was a case of mutual mistake. That the deficiency was not in the subject matter of the contract, for that was the two lots as marked and surveyed for D.; but that the difficulty was in giving title to that subject matter. Where commissioners appointed by a statute to survey and divide a tract of land, run out and marked the boundary of one of the divisions on the land itself, at a distance of ten chains from the place where they laid it down and described it as being situated on their map and field notes; the division is limited to the line actually marked by the commissioners, and cannot be extended to the line intended as shown by the map. Equity will not compel a purchaser to take land which is involved in a doubtful and disputed question of boundary. The vendee who has assigned his contract, is a proper party in a suit by his assignee against the vendor, for a specific performance; but if he be omitted, and no objection be raised till the hearing, the court will direct a decree, on his executing and filing an assent and agreement in proper form, to be bound by the decree. Poughkeepsie, July 31, August 1; August 17, 1846. THIS was a bill for specific performance, filed October 17th, 1845, by Francis C. Voorhees and his partners, against Nicholas De Myer. The bill stated that in May, 1817, De Myer claiming to be the owner in fee of 187 acres of land in the town of Lexington, in the county of Greene, in the Hardenburgh Patent, agreed to sell the same to William Griffin, for four dollars per Voorhees v. De Myer. acre. That thereupon a contract in writing, was executed between them in the words following: "Nicholas De Myer of Kingston, agrees to sell and convey to William Griffin of the town of Middletown, Delaware county; lot number nine and eleven, in number twenty, in great lot number thirty-four, one hundred eighty-seven acres and one-half, for seven hundred and fifty dollars, to be paid in five years from this date, in equal annual payments, together with the interest of the whole on each payment until paid. The deed to be delivered on payment of one-half of the purchase money, and satisfactory security given for the remainder. And for the true performance of this agreement, the parties bind themselves in the penalty sum of one thousand dollars, as witness our hands this 30th day of May, 1817. Witness present, NICHS. DE MYER, That there was a misdescription of the premises in the contract, in this, that the lots intended to be sold are lots number nine and eleven, in Division number thirty-four in Great Lot No. 20, in the Hardenburgh Patent. That at the time of the contract, the lands were wild, uncultivated, and covered with woods. That Griffin entered upon a part of the lots, supposing there was one hundred and eighty-seven and one-half acres in both, (De Myer at the sale having shown him a map and survey of lots 9 and 11, exhibiting that quantity,) soon after he bought them, cleared up large portions of them, and erected a dwelling house, barn, stable, fences, and other valuable improvements thereon, and remained in possession of such part, and claiming all to which De Myer had title, to the present time, and made payments to him almost every year, towards the purchase money, until 1845, having paid in all, over $1550 to De Myer. That about the time Griffin entered, one Garrison took possession of forty-three and one-half acres, parcel of the one hundred and eighty-seven and one-half acres, as located on De Myer's map and survey of lots 9 and 11, and Garrison and those under him, have ever since been in possession of the forty-three Voorhees v. De Myer. and one-half acres, claiming the same under a title adverse to that of De Myer. That on learning of this claim, and that De Myer had no title to the forty-three and one-half acres so sold to him as a part of lot 11, Griffin apprised De Myer of the possession and claim of Garrison, but the former never took any measures to assert o: maintain his title thereto. Griffin never took or had possessior. of the forty-three and one half acres, and De Myer never had any title to or interest in it, or any authority to sell the same. That about twenty years ago, a controversy having arisen be. tween some of the proprietors of the subdivisions of Great Lo: No. 20, as to the true boundary lines of the Divisions, (one o which was No. 34,) many of the proprietors of No. 34, having the same title and from the same source as De Myer, after investigating the matter, relinquished all claim to go beyond a certain commissioner's line run before 1800, and which line cuts off from the lots 9 and 11, as sold by De Myer, the same forty-three and one-half acres held by Garrison. The bill then sets forth, that in April, 1845, the complainants recovered a judgment in the supreme court against Griffin, on which they had an execution issued and returned unsatisfied, and being about to file a creditor's bill, Griffin executed to them an assignment of his contract with De Myer. Previous to this, with a view of securing them, Griffin had applied to De Myer for a deed of the premises sold to him, who refused to give it unless Griffin would pay the whole purchase money expressed in the contract, and on receiving the deed, would release the forty-three and one half acres. The complainants notified De Myer of the assignment to them, and renewed the application for a conveyance, with the same result. The bill prayed for a specific performance, and for an abatement of the price pro rata, if De Myer should be unable to give to the complainants a good title to the forty-three and one-half acres. The answer of De Myer, stated that at the time of the sale, he and his wife claimed to be seised in fee of lots 9 and 11, in right of his wife. That the price for which he sold the lots, was Voorhees v. De Myer. the gross sum of $750, without reference to the precise number of acres, and that he did not sell them by the acre. That he did not produce to Griffin at the sale, or at any time, a map or survey of the lots. That he then supposed and still believes the lots contained one hundred and eighty-seven and one-half acres ; and Griffin entered on all of the land he chose, and might have entered and possessed the whole one hundred and eighty-seven and one-half acres. That Griffin was bound to take and maintain possession of the whole; that he did not inform the defendant of Garrison's claim or possession within twenty years of the time he alleges such possession was taken; and if by Griffin's omission to take possession of the whole premises, any part of them is now held adversely or by a title growing out of Garrison's claim, Griffin and his assignees must be the sufferers, and not the defendant. And the defendant denied that any adverse possession under claim of title had ever been taken or maintained of the forty-three and one-half acres. The defendant was ignorant of the alleged investigation of proprietors under the same source of title, as to the boundary lines of the Division No. 34 of Great Lot No. 20, and he never acquiesced in their conclusion. When the applications were made for a conveyance, the defendant was ready and offered to convey, on receiving the balance of the purchase money due on the contract, but would not by his deed, warrant that lots 9 and 11 contained one hundred and eighty-seven and one half acres, or convey them by a special description which would include the lands possessed and claimed by or under Garrison. That he has not done or suffered any act by which the title of himself and his wife to the whole of the one hundred and eighty-seven and one half acres, has been impaired or affected; and they have a good title to the whole. In other respects the answer admitted the statements of the bill, except as to the judgment and proceedings thereon, which were regularly proved. Issue being joined on the answer, both parties took testimony. The evidence is in part, to be found in the opinion of the court. The defendants read in evidence an act of the legislature, VOL. III. 78 |