
    Julia Fitzpatrick, App’lt, v. Michael Sweeney et al. Brian Kelly, Purchaser, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 14, 1890.)
    
    1, Judicial sale—Purchaser, when relieved—Misdescription.
    A piece of land sold on foreclosure was described in the deed to the mortgagors and in the mortgage as commencing 266 feet from a corner, when it in fact was 226 feet therefrom; Proceedings to correct this error were taken in the foreclosure proceeding after the sale, but without notice to the purchaser. Held, that this did not remedy the defect; that the title was not a marketable one, and that the purchaser should be relieved from his purchase.
    2. Deeds—Description.
    The rule that where the description is meagre resort may be had to evidence to show the piece of property intended to be conveyed does not apply where there are metes and bounds, the description being pL.t;cular and starting from a point erroneously.
    Appeal from order of special term, granting motion by the respondent Kelly to be relieved from a purchase at a foreclosure sale.
    
      J. Hardy, for appl’t; J. M. Bowers, for resp’t.
   Brady, J.

The price of property sold under the foreclosure was described in the diagram as Mo. 247 "West Sixteenth street and as beginning 266 feet easterly from the northeasterly corner of West Sixteenth street and Eighth avenue.

It was so described in the deed conveying it to the mortgagors and in the mortgage to the mortgagee given to secure part of the purchase money.

The grantor was James Black surviving executor of John Mackintosh, and by the conveyance to Mackintosh the premises were described to be 226 feet and not 266 feet from the corner of the street as described in the mortgage. .

It is immaterial to consider how this mistake occurred. It is enough for the purposes of this appeal to know that it did occur and that it was not corrected by any formal and proper proceeding initiated for that purpose as required by the rules of equity.

It is true that these premises wTere known as Mo, 247 West Sixteenth street, and perhaps if the description had contained nothing more than that, resort might be had to evidence aliunde the deed to show what was intended to be conveyed.

It is true also that by the proceedings initiated subsequent to the sale it becomes quite apparent that the premises which were actually conveyed, by intent if not by words, were 226 feet easterly from the Eighth avenue and that the deed by Black was intended to convey Mo. 247 West Sixteenth street as it was then known, and nothing else.

But these proceedings were based upon an order of reference made in the action of foreclosure without notice to the purchaser, and were not, therefore, in all their essential elements an action in equity to reform the instrument by which the purchase of 247 West Sixteenth street was designed to be accomplished.

It seems to be well established that a conveyance will be so construed as to carry into effect the intention of the parties so far it can be ascertained from the instrument itself, but that' nothing will pass by deed except what is described therein. Thayer v. Finton, 108 N. Y., 394; 13 N. Y. State Rep., 778; Brookman v. Kurzman, 94 N. Y., 272. These cases recognize the proposition already suggested, that if the description is meagre, resort may be had to evidence to show what piece of property the grantor really intended to convey, a principle that does not apply where there are metes and bounds, as in this case the description being particular and starting, as already indicated, from a point erroneously.

It seems to be also settled that although a court of equity may in the exercise of its power reform an instrument upon evidence of a mistake made, or by decree carry out the intention of the parties to a contract or their privies, it can only be done in an action by which the parties in interest may be brought into court. Crippen v. Baumes, 15 Hun, 136 : Cady v. Potter, 55 Barb., 463; Fleming v. Burnham, 100 N. Y., 10. 1 Story Eq. Juris., 179, § 165, states the rule to be that in all cases of mistake in written instruments, courts of equity will only interfere between the original parties or those claiming under them in privity.

The title depending upon the conveyance mentioned with its attendant defects and supported by such proceedings as were adopted herein cannot be regarded as a marketable one. It should be free from all reasonable objection, and should not be such an one as upon examination appears to be unsupported, showing the title to a part of the premises conveyed to be in another. Ho purchaser should be placed in such a position of jeopardy with litigation of some kind not only possible but probable, and particularly at a time when the spirit of the age seems to be litigious.

The order should be affirmed, with ten dollars costs and disbursements.

Yan Brunt, P. J., and Daniels, J., concur.  