
    GEORGE H. BEYER, Plaintiff and Respondent, v. BENJAMIN MARKS, Defendant and Appellant.
    
      [Decided December 31, 1870.]
    The following general rules are well established in this State as relating to contracts for land, and actions for specific performance of the same: First, a purchaser may insist upon a good, valid, and unincumbered title. Second, he is entitled to receive substantially from his vendor all the property for which he contracted. Third, if he obtains such a title, and obtains substantially the property for which he contracted, by the conveyance offered, a court of equity will enforce performance on his part; otherwise not.
    A court of equity, in the enforcement of a specific performance of a contract, where it appears there was a slight deficiency in the estate, or a variance in the description, or an incumbrance that can and should be the subject of compensation, must consider and provide for the same in the decree. Compensation follows as a matter of right, and must be provided for in the decree in all proper cases.
    When specific performance of a contract is decreed, and it appears from the evidence that compensation should have been given, a failure of the court or referee to take evidence relating to the compensation, and the amount thereof, and to consider or provide for the same in the decree or report, is error.
    There are certain conditions or circumstances attendant upon every case of compensation—First, the deficiency, defect, or whatever is complained of, must be one of that character that can be made the subject of compensation or of consideration as damages; and second, in such a case compensation can be and should be decreed by the court, provided that it is also a case where he concludes that the purchaser would not have declined the contract had he known of the defect at time of purchase.
    Before Barbour, C.J., Freedman and Spencer, JJ.
    This action was to compel the specific performance of a contract for the sale to defendant by plaintiff of certain premises on the southwesterly corner of Sixth avenue and Seventeenth street, in the City of New York, consisting of two lots, in depth on each side 100 feet, and in front and rear, 46 feet, more or less, with buildings thereon, of which the plaintiff was the owner in fee.
    
      The counsel employed by the defendant to examine the title of the property, having caused a survey to be made, ascertained that the southerly extremity of the premises in Sixth avenue was distant 46 feet and 3 inches from the northerly corner on said avenue, while the deeds through which the title was derived conveyed but 46 feet, commencing on the southwesterly corner of Seventeenth street and Sixth avenue.
    He called the plaintiff’s attention to the fact some days before the time fixed by the contract for the delivery of the deed, and stated that if the fact was as appeared by the survey, it offered a valid objection to the title.
    The plaintiff stated that the fact was otherwise, and that he had a survey showing such to be the case, which he promised to exhibit to the defendant’s counsel.
    Although his attention was again called to the matter, he failed to produce any such survey.
    The defendant’s survey was made by an experienced surveyor, duly appointed, and was duly certified.
    On the day named for the delivery of the deed, the plaintiff tendered a deed by which he assumed to convey the premises in question, and demanded the performance by the defendant of Ms part of the contract.
    The defendant declined to receive the deed or to complete the contract, upon the ground that the plaintiff had not a good and complete title to all the property he had agreed to convey.
    The defendant thereupon declared the contract at an end by reason of the failure of the plaintiff to perform the same, and afterwards repeated both to the plaintiff and his counsel that the contract had been thereby rescinded.
    The plaintiff, notwithstanding, obtained a quit-claim deed of three inches of land, commencing 46 feet southerly from Seventeenth street in Sixth avenue, and running southerly three inches, and made a new tender to the defendant on the 28th of September.
    The defendant again refused to accept the deed, alleging as the reason for such refusal, firstly, the failure of plaintiff’s title ; secondly, the rescission of the contract; and, thirdly, the defect in the execution of the deed last tendered, the stamps on which had not been cancelled.
    The plaintiff thereupon commenced this action.
    The issues were tried before a referee, and a judgment having been rendered in favor of the plaintiff, the defendant filed exceptions to the report, and upon a case and exceptions brought this appeal.
    
      Mr. Stephen P. Nash for appellant.
    The referee erred in his finding that the plaintiff was on Sept. 15,1868, the owner in fee simple of the premises described in the contract.
    It appeared by the evidence that the plaintiff had no title, on September 15th, to any more than 46 feet on Sixth avenue, running from the southwest corner of Seventeenth street.
    It also appeared that the Sixth avenue frontage of the premises in question was 46 feet and 3 inches.
    Whether the encroachment was on the northerly or on the southerly side, it was an encroachment on property to which the plaintiff had no title.
    If on the northerly side, the encroachment was in the public street, and the plaintiff could not, by any subsequent proceedings, obtain a title to the land encroached upon.
    If on the southerly side, the plaintiff obtained no title to the land until ten days after Sept. 15th.
    The contract had then been rescinded in the plaintiff’s wrong, and the subsequent tender of a new deed to the defendant was nugatory.
    The referee erred in not finding that the plaintiff was unable, on the 15th of September, to convey to the defendant a good title to the premises which he had agreed to convey.
    The premises agreed to be conveyed were described in the contract by the street numbers.
    The deeds to the plaintiff conveyed only 46 feet on Sixth avenue. .
    
      • The premises described in the contract covered 46 feet three inches.
    The encroachment was on property to which the plaintiff had no title.
    He had no title to the strip on the south, and could not possibly have any title to the property on the north, which was a public street.
    The referee has found as a fact, that the northerly wall of the corner building encroached three inches on Seventeenth street.
    He has thus found that the plaintiff has no title to three inches of the property which he agreed to convey. .
    The portion of the property in respect of which the title fails, is probably the most valuable piece of the same dimensions on the entire plot. The wall on the Seventeenth street side is a substantial and an expensive one.
    The ground upon which it stands is a public street.
    The encroachment on the street constitutes a public nuisance.
    The corporation might maintain ejectment, and require the wall to be taken down, or, by more summary proceedings, might compel the owner to take down the wall as a nuisance.
    They might also mulct the owner in daily penalties for the encroachment, and have him indicted criminally for maintaining a nuisance.
    The plaintiff erected the building himself, and must have known of the encroachment. In fact, it appeared by his own testimony that he did know of it.
    He cannot be permitted, coming into court as a trespasser upon public and private property and rights, to enforce the performance of a contract in respect to the property which he thus wrongfully uses. He must do right and equity in order to be able to require equity from others.
    ' Tet, after erecting a building in the public street, not only in violation of law, but in violation of private rights, he asks the court to compel another and an innocent party to take the property in its unlawful position and to assume the penalties, risks, and liabilities, incident to the same by reason of his own wrongful acts (Guynot v. Mantel, 4 Duer, 86; Winne v. Reynolds, 6 Paige, 407; King v. Badeau, 6 Johns. Ch., 38).
    The referee should have found, that the defendant objected to the deed tendered on September 15, on the ground that the plaintiff could not convey a good title to all the property he had agreed to convey.
    The evidence showed clearly that this was the reason alleged, and that the objection did not, in terms, apply to a supposed encroachment on the southerly side.
    This objection was made as definite as it could be under the circumstances.
    The fact did not appear definitively as to where the encroachment was until the trial.
    The surveyors were not certain, and the parties were consequently in doubt.
    But even if the obj ection had related to a supposed encroachment on the southerly side, if it should afterwards appear that the encroachment did in fact exist, but was on the northerly corner, the objection would be sufficient.
    If the encroachment was of such a nature that it would be obviated, the plaintiff might claim that he should have had notice of its exact location, so as to enable him to perfect his title, but inasmuch as the defect of title could not have been remedied, in any event, it is of no importance as to what was said in regard to the loom of the encroachment.
    The referee should have found, that on the 15th of September the plaintiff declined to postpone the time for the completion of performance of the contract, and that thereby, by the election of the defendant, the contract became rescinded, and that no subsequent proceedings of the plaintiff to acquire title to property to which he had then no title, or to remedy defects in his title, would be available.
    Even if the plaintiff should take down his wall so as to do away with the encroachment, he cannot now compel the defendant to take the property.
    By his course on September 15, time became the essence of the contract; the defendant took advantage of the plaintiff’s default and rescinded the contract, and the plaintiff lost his right of action for a specific performance, even if he should afterwards be able to complete the contract on Ms part.
    The referee should have found that the plaintiff knew at the time he made the contract that Ms building encroached on the street.
    
      Mr. William Allen Butler for respondent.
    The referee having found as matter of fact, that the plaintiff was ready and willing to perform the contract according to its terms, and that the sole objection taken by the defendant was that the building Ho. 265 Sixth avenue encroached on the adjoming lot, and having also found that no such encroachment existed, and these findings being abundantly supported by the evidence, there is no just ground of exception to the report, or for reversing the judgment (Hoogland v. Wight, 7 Bos., 394; Lincoln v. Lincoln, 6 Rob., 525; Woodruff v. McGrath, 32 N. Y., 255). Even if the objection made by the defendant on the 15th September, the day-fixed by the contract for closing the purchase, that the building Ho. 265 Sixth avenue encroached on the adjoining lot, had been well founded, the defendant could not avail of it to defeat the performance of the contract, and it having been wholly obviated within a reasonable time, he was bound to perform.
    The alleged encroachment on the adjoining lot was the sole ground specified on behalf of defendant to completing the purchase. The plaintiff insisted that it did not exist and tendered Ms deed. The defendant refused to accept it But neither party was then in a situation absolutely to determine the mooted question of fact.
    The defendant could not have refused to perform if the objection had at the time been cured or shown to be untenable or to be capable of prompt remedy. Time was not the essence of the contract. Ho question of immediate possession was involved. The purchase was for investment. Both parties were, up to that time, acting in good faith with a view to performance, and no change of circumstances is shown. On this state of facts equity required the performance of the contract by the purchaser, irrespective of the stipulated time (Adams on Eq., p. 88; Wynn v. Morgan, 7 Vesey, p. 202; Matlock v. Butler, 10 ib., 292; Chamberlain v. Lee, 10 Sim., 414; King v. Wilson, 6 Beav., 124; Egerton v. Simonds, 1 Y. & Coll., 608; Earl of Durham v. Legard, 34 Beav., 511; Seton v. Slade, 7 Ves., 265; Seymour v. Delancy, 3 Cow., 446; Viele v. Troy & Boston R. R. Co., 21 Barb., 381). The objection was wholly untenable, irrespective of any question of fact as to the alleged encroachment.
    The contract called for the conveyance of the lots Eos. 265 and. 267 Sixth avenue. The conveyance to plaintiff gave him 46 feet, “more or less.”
    Ko adverse claim or title has been shown in respect to the alleged three inches, and no fact on which such adverse claim could be predicated.
    The fact that plaintiff’s buildings cover three inches more than 46 feet, does not of itself constitute a valid objection to the performance of this contract. There was no evidence of any better title, and the evidence of Mr. Keller and the execution of the deed for a nominal consideration show that no adverse title exists.
    To constitute a valid objection to the performance of a contract such as this, it is not enough to show a variation of two or three inches, but an adverse right or claim thereto must also be shown. And a trifling variation is never allowed to defeat performance (Winne v. Reynolds, 6 Paige, 407; King v. Badeau, 6 John. Ch., 38; Chamberlain v. Lee, 10 Sim., 444). But it was clearly established by the evidence, that there was no encroachment on the adjoining lot, and this having been the only substantial question involved, the findings of the referee are correct.
    There was no substantial conflict in the surveys or in the testimony of the surveyors. It was abundantly shown that the southerly wall of the building No. 265 Sixth avenue was on the southerly line of plaintiff’s lot.
    
      The fact disclosed at the trial in reference to the trifling projection of the iron-work on the sidewalk, while it explained the origin of the defendant’s mistaken claim, did not furnish any-ground of objection or defense.
    The projection in the street is only of the face of the iron column, twelve inches wide, and the brick work above the first story. The surveyors all say that corner buildings are apt to encroach somewhat, and the ornamental or accessory parts of all buildings on open spaces overlap a little. But no one complained of this or could or can complain. The plaintiff had a right to inclose and shut off permanently four feet of the sidewalk for an area, under the corporation ordinance. The. steps, cornices, and railings of all corner buildings are on the street. The objection to close a purchase of a corner lot and building in this city,- on the ground of a three-inch encroachment on the sidewalk of ironwork and upper brick-work, could not be sustained in any view (Corporation Ordinances, chap. 18).
    The test of the right to rescind a contract such as the one in question, is whether the ground of objection so far affects the subject-matter of the contract that it may reasonably be supposed that, had it been disclosed, the purchaser would never have entered into the contract (Flight v. Booth, 1 Bing., N. C., 377).
   By the Court:

Spencer, J.

Although I am not perfectly satisfied that this is a case where specific performance should not be decreed, yet I am clearly of the opinion that in case of such a decree, compensation should have been awarded.

In Dyer v. Hargrave (10 Vesey, 505), there was a bill filed for a specific performance of a purchase of land sold at auction. The particulars preceding the sale described the house as in good ■ repair, and that the farm was all within a ring fence. The defendant objected on the ground that this description was not true, and it was admitted that the facts in the case varied from this description, but that a minute examination would have disclosed the facts and discovered the defect.

The master of the rolls decreed a performance, and held that every variance from a description would not enable a man to resist the performance of a contract.

That if a man gets substantially that for which he bargains, he must take a compensation fqr a slight deficiency in the value.

In King v. Badeau (6 Johnson’s Ch. Reports), Chancellor Kent, referring to Dyer v. Hargrave, says, This case establishes what I apprehend to be the true doctrine on the subject,” and in the decree or order then made by the chancellor, he adopts this doctrine. In the case of King v. Badeau, two lots were sold together at auction, Nos. 42 and 43 Broome street. There were two buildings on No. 42, one in front and the other in the rear of the lot, both of which projected upon No. 43 about twenty inches. The lots were sold free from all incumbrances, except a lease of lot 42, which lease provided for the disposition of the houses at its termination.' The terms of sale stated that the buildings were situate on lot No. 42, but the fact was that they projected about twenty inches over and upon lot 43. The purchaser claimed that this variation of the condition or quality of the lots ought to vacate the sale. The chancellor held that this variation was not sufficient to justify the abandonment of his contract, but as it might diminish its value below what its value-would have been if such projection had not existed, he ordered a reference to ascertain the amount of such diminution in value (if any).

The rule or principle was discussed and fully recognized in the opinion of this court in Guynot v. Mantel (4 Duer, 94), wherein Justice Hoffman laid down as a general rule “ that a purchaser may insist upon a good, valid, and unincumbered title to the property for which he contracts,” and also “ that a purchaser is entitled to obtain substantially the property for which he contracted.”

From these cases, and others that I have examined, I conclude the following rules to be well established in this State:

Fwst.—A purchaser may insist- upon a good, valid, and unincumbered title.

Second.—lie is entitled to receive substantially, from his vendor, all the property for which he contracted.

Third.—If he obtains such a title, and by the conveyance offered obtains substantially the property for which he contracted, a court of equity will enforce performance on his part —otherwise not.

These general rules are not, in my opinion, modified or affected by those relating to compensation, which the court will enforce in all proper cases, in favor of the purchaser against the vendor, when specific performance has been or shall be decreed, as, for instance, in the case of a slight or immaterial deficiency in the estate, a variance of description, or an incumbrance affecting the title, as in the cases cited. The doctrine of compensation, as a rule in equity, follows these and like cases, in order to pay the purchaser for these slight defects, that in equity he may be entitled to, if in equity he should be compelled to fulfil the contract of purchase, and in such cases compensation follows as a matter of right, and, as I hold, must be provided for in the decree in all proper cases.

There are certain conditions or circumstances attendant upon every case of compensation:

First.—The deficiency, defect, or whatever is complained of, must be one of that character that can be made the subject of compensation, or of consideration as damages.

Second.—In such a case, compensation can be and should be decreed by the court, provided, hoioever (and this proviso seems to be expressly laid down by Justice Hoffman in Gruynot y. Mantel), that it is also a case where the court concludes that the purchaser would not have declined the contract had he known of the defect or matter complained of at the time of the purchase.

This doctrine of compensation was carried to an unwarrantable extent in the early English cases, and a court of equity should keep it entirely subservient to the general rules. As the doctrine is now held in this State, and as considered and reviewed by Sent and Hoffman in the cases cited, it is consistent with the rules of equity, and now stands upon a just and safe basis.

In all cases where compensation should be considered and given, the court should provide for the same, and receive evidence relating thereto, so that equity can be fully meted out in the decree. It is very clear, in my judgment, that if in this case the contract should be enforced, compensation should be awarded. If the referee had taken testimony relating to the same, it might more clearly and fully appear that it was not a case where compensation could have been made, and that performance should not have been decreed. As the case now stands, there is much force in the proposition that the defendant would receive substantially the property for which he bargained, and had he known the facts he would still have purchased, as there is also in the counter-proposition, that he has not received what he purchased, and had he known of the projection of this building into the street he would not have purchased,” etc., but I am confident that the referee erred in not providing for compensation after holding that the contract should be enforced, notwithstanding this defect or deficiency.

The judgment should be reversed, and a new trial ordered, with costs to abide the event, and the order of reference vacated.

Barbour, C.J.

(concurring). The contract between the parties in this case requires the plaintiff to convey to the defendant the property known as Nos. 265 and 267 Sixth avenue, and 100 and 102 West Seventeenth street, in this city, with the buildings thereon.”

It is conceded that the plaintiff owns and may convey all the land on which the buildings stand, with the exception of a small strip of ground in and constituting a part of Seventeenth street, upon which the iron columns supporting the corner building encroach about three inches, and over which the wall" itself, above the first story, projects the same distance.

It is obvious that the plaintiff designed, in good faith, to sell, and the purchaser to buy, not only the land upon which the buildings were, but the buildings themselves, with all the land on which they stood. It being clear that the vendor is unable to make a valid conveyance of all such land, the question is whether the purchaser is bound to take the plaintiff’s deed for such portion thereof as he can legally convey, in full satisfaction of the contract on the part of the latter.

If the overlapping of the building in question was an encroachment upon the property of an individual owner, as would have been the case had it extended three inches beyond the plaintiff’s southern line, the defendant, there can be no doubt, would not have been bound in law to accept*a deed conveying to him all the land owned by the vendor as a performance of the agreement.

The mayor, aldermen, and commonalty of the city of Hew York are not only the owners, in fee, of the streets laid out by the commissioners under the act of 1807 (Davies’ Laws, 460), and opened in accordance with the provisions of the statute of 1813 (Valentine’s Laws, 1190), but they hold the land covered thereby in and upon the trust that the same be appropriated and kept open for public streets forever ” (ib., 1198). It follows that the corporation not only may maintain an action of ejectment for the recovery of so much of the street as is covered by the building in question, as the owner of the fee, precisely the same as an individual might do, but that it is also charged, by a positive enactment of the legislature, with the trust, obligation, and imperative duty to keep the land free and open as and for a street forever; a trust or duty, it may be remarked, of which any cestui yue trust, interested in the question, or the attorney-general, may enforce the execution. Considering this, it appears to me that the deed offered by the plaintiff is, at least, as objectionable as it would be if the building rested upon and projected over the adjoining land of an individual to the same extent.

The referee has found, and, no doubt, correctly, that such encroachments upon the streets of the city are not uncommon; and he might have added that they have, in many instances, been tolerated by the failure to act, or silent acquiescence of the corporation and its officers. We have no right to assume, however, that the city authorities will not, at some future time, deem it necessary or proper to compel the removal of all obstructions from the streets, so as to have them open as such for their entire width, nor that the corporation will always refrain from enforcing its rights as the owner of the fee. We have simply to determine upon the legal and equitable rights of the parties to this controversy, and cannot, properly, thus speculate upon probabilities.

It is also true that the limited area of the corporation’s land occupied by the building is of but little comparative value. But, even if the value was so small as to bring it within the maxim “demi/nimis non cv/rat lex” which is, at least, doubtful, it is to be considered that the injury to the owner of the building, in case the corporation should enforce its rights, would not be measured alone by the value of the land, but as well, probably, by the trouble and expense of removing the wall or reconstructing it.

In order to entitle the plaintiff to recover in this action, he was bound to prove upon the trial, either that he had fully performed the provisions of the contract on his part according to the letter thereof, including the conveyance of that portion of Seventeenth street occupied by the building, or, to show by his evidence that the non-conveyance of the latter was not essential or material to the full performance by him of such contract; and as he has not done this, the principle upon which the numerous decisions have been made whereby decrees for specific performance have been passed, notwithstanding the failure or inability of the complainants to perform their agreements in certain unimportant and non-essential particulars, does not apply to this case.

I am, therefore, of opinion that the learned referee erred in directing a judgment for the plaintiff, and that such judgment should be reversed and a new trial awarded, with costs to abide the event.

In view of what I have said above touching the duty of the corporation under the act of 1813,1 deem it unnecessary to express any further opinion here touching the validity and effect of the license given by the corporation to the plaintiff to build an area, in so far as that license may have been intended to empower him to occupy permanently any portion of the surface of the street.  