
    P. Elbert Nostrand, App’lt, v. Mary T. Knight et al., Resp’ts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 11, 1889.)
    
    ■Contract—Por sale of real estate—Construction.
    Where in. an action to compel specific performance of a contract to convey real estate, the description contained in the agreement was as follows: “All that certain grist-mill and water power, including a tract of land with tenant-house at Round Pond, and the outlet to said pond, together ■with all the rights and privileges to the water in said pond that the late C. B. Knight possessed in his life-time and belonging to said property.” There is a strip of land adjacent to the pond, near the lower part of it, and the contention is whether this strip should be included in the deed. Knight acquired the property by devise, the words of the devise are specific, and by metes and bounds described the beds around the pond; he mortgaged it - by the same description. In 1882 the defendants took the land for sale in the hands of real estate agents, and the map made by them included the land around the pond. In 1887 a sale was made to the plaintiff’s assignor, and the subject of the contract was treated as the same as that indicated by the map. The defendants claim that only the gristmill and water power, together with the Round Pond, was included in the contract. Held, that there is no reason why the mill and water rights should be separated from the uplands, as the land is a very beneficial aid to the water, and that the defendants manifestly agreed to sell the land and water rights without any abatement.
    Appeal from a judgment entered upon the decision of the court upon a trial by the court at special term without a, jury.
    
      This action was brought to compel the specific performance of a contract to convey real estate.
    The property in controversy is situated in the town of' Monroe, Orange county, N. Y, and, originally, was part, of the homestead farm of Daniel 0. Knight. He" died in 1862, and, by his will, devised to his son, Chauncey B. Knight, about eight acres of land, which he carved out of his homestead, describing it by metes and-bounds, and adding at the end of such description these words, “ including the grist mill, saw mill, etc.” Chauncey B. Knight died in 1880 intestate, seized of this property, and his heirs-at-law, the defendants (other than the defendant Charles T. Knight), executed and delivered to Charles T. Knight a power of attorney to sell any and all real estate owned by them. In 1882 Charles T. Knight placed in the hands of Philips and Wells, real estate agents of New York city, the-entire eight acre tract of land (together with certain property at Round Pond) for sale for the sum of $15,000. No sale was made by them. In 1881 the New York agents requested a revision of the price, and it was réduced to-$10,000, but no indication was made that the property was. different from the map. On the contrary it was silently at .least treated as the same as left for sale in 1882.
    After C. B. Knight acquired the property, he mortgaged, it by the same description as contained in the devise to him.
    A sale was made to A. S. Murray, Jr., in 1881, who assigned the contract to the plaintiff. A deed was tendered by defendants and refused by the plaintiff for the reason that it did not convey the property described in the contract. A second deed was then tendered, which was also refused, for the reason that it did not conforrh to the contract and did not describe by metes and bounds the premises agreed to be conveyed. The plaintiff then brought this action, claiming that he was entitled to the entire eight acre tract of land.
    
      B. F. Tracy, for app’lt; E. A. Brewster, for certain resp’ts; M. N. Kame, for resp’t Chas. T. Knight.
   Barnard, P. J.

—The pleadings raise no question as to the binding force of the agreement upon all the parties. The signatures of the attorneys by Phillips and Mills was made by admitted authority, and to the charge that the defendants made the contract there' is no denial, but an admission that Charles T. Knight, the attorney, had power to contract for all the other owners. The property intended is not certainly defined and described in the agreement. This description is a general one, as follows:

“All that certain grist mill and water power, including a tract of land with tenant house at Bound Pond, and the outlet to said pond, together with all the rights and privileges to the water in said pond that the late C. B. Knight possessed in his life-time, and belonging to said property. It appears that there is a strip of land adjacent to the pond and near the lower part of it, and the question is whether this strip, amounting in all to about seven acres, should be included in the deed. The title came to Charles B. Knight, a devise from his father, in 1862. The words of this devise are specific, and by, metes and bounds described the beds around the pond, “including the grist mill and saw mill.” After Charles B. Knight acquired title he mortgaged the property by the same description.

In 1882 the present owner took the property, for sale in the hands of real estate agents in New York, at a fixed price, and a map was at the same time left with them showing the property to include the land around the pond. This map was not shown to the plaintiff’s assignor, so that he did not expressly contract with reference to it, but its importance remains as indicated that the property was what was known as the “mill property and water power” of the Knight family, at Monroe, Orange county.

In 1887 the New York agents requested a revision of the price, and it was reduced to $10,000, but no indication was made that the property was changed so as to be different from the map. On the contrary, the subject of the contract was silently, at least; treated as the same as left for sale in 1882.

The description in the bond and mortgage includes the saw and grist mill and lands surrounding them. As against this evidence there is only the understanding of several witnesses that the mill property only included the part of the land devised by Charles B. Knight, which was rented and used with the mill. The strip alongside the pond was separately rented. There is an absence of proof tending to "bring home to the purchaser that there was any change in the land sold to make it different from the piece devised.

The proof that in dealing with the property the owner had rented the mill and water power separate from the land along the pond has little importance, and the belief and understanding of the people of the neighborhood that the mill and water rights fill the description of the agreement has still less in view of the proof. The plaintiff acquired land and water manifestly as a mill privilege, and they agreed to sell this land and water rights without indicating any abatement. The land is a very beneficial aid to the water right, both the up-land and the low-land under water.

There is no reason proven why both should be separated from the mill and water rights.

The judgment should, therefore, be reversed and a new trial granted, costs to abide the event.

All concur.  