
    Clarence R. Tryon and Pauline E. Tryon, Appellants, v. Jennie F. Lyon, Respondent.
    Fourth Department,
    July 6, 1909.
    Real property — misrepresentation' as to boundaries — rescission of deed for mistake—fraud not essential. ■
    Where prior to a sale of lands the grantor pointed out the boundaries to the grantee and stated that a certain barn and fruit trees were included in the property, upon -which statement the grantee relied in making' the purchase, while as a matter of fact two and one-half feet covered by said barn and fruit trees had been previously conveyed by the grantor to another party;.- the grantee is entitled to a decree rescinding the conveyance for'a material mistake of fact.. This is so, although the misstatement by the grantor was not an intentional misrepresentation, or fraudulent, for equity will not permit a grantor to , profit by a misstatement, even though unintentional.
    
      Appeal by tlie plaintiffs, Clarence B. Tryon and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Onondaga on the 26th day of January, 1909, upon the decision of the court, rendered after a trial at the Onondaga Special Term, dismissing the complaint upon the merits.
    On the 2d day of June, 1908, the defendant owned a house and lot in the village of Liverpool, in the county of Onondaga, with an easterly frontage on Tulip street at its intersection with Fourth street. By a deed bearing date on that day she conveyed the same to the plaintiffs in consideration of the sum of $2,450, $350 of which were paid in cash, the payment of a subsisting mortgage of $950 was assumed by the. grantees, and they gave their joint and several bond secured by a second mortgage of $1,150, the residue of the purchase price. Before purchasing the premises the plaintiffs inspected the house and were shown the boundary lines by the defendant. . There was no fence on the south side of the lot, which extended westerly 165 feet. There was a barn on the southwest corner of the lot, and the evidence, without dispute, shows that the defendant told the plaintiffs that the southerly side of the barn was the southerly lot line. There was also a bed of ferns and fruit trees near the line, and the plaintiffs testified that the defendant said the fern bed and fruit trees were on the lot they were to purchase. The defendant testified that she said a part of the bed of ferns and the apple trees were within the premises to be conveyed, and that the pear tree and other shrubbery were on the adjacent lot, which she had sold to one Heid.
    The plaintiffs also testified that they went with the defendant to the northeast corner of the lot at the intersection of Tulip and Fourth streets. There was no sidewalk on the south side of Fourth street and no lot fence find nothing to denóte the street line. A cement sidewalk had been constructed on Tulip street along the front of the lot, and the defendant said that the end of this walk at Fourth street was the line of that street, which was ninety feet in width, so that there was room for an additional lot of fairly good width between the dwelling house and Fourth street. The defends ant denied this conversation in a measure, stating that she told the plaintiffs she was not certain of the south line of Fourth street, but that the end of the walk was on this line, and that she did not say anything as to the width of the street.
    The deed to the plaintiffs gave the frontage of the lot as 96^-feet and the southerly line as 165 feet, both of which distances" were correct. . The distances on thb rear of the lot and on Fourth street .were not given in'the deed.. The southerly boundary of Fourth street was not a straight line.
    The plaintiffs took possession qf the premises the day the deed was delivered, going there from Syracuse. They found that Mr. Heid, the owner of the contiguous lot, had torn- up the fern bed and was making preparations to build. His lot. had been surveyed and included two and a half feet on the southerly-part of the premises conveyed to the plaintiffs, -including the pear tree, a part of the fern bed and the barn extended on his premises two and a half feet. It also developed that Fourth street was not ninety feet but ninety-nine feet in width, and that1 the cement walk extended into Fourth street one and a half feet.
    The plaintiffs on the same day notified the defendant of the mistake as to the location of the south line, and immediately insisted upon reconveying the premises to the defendant and asked that the money paid be refunded to them, the bond and mortgage canceled and the whole contract rescinded. The defendant, while' admitting the error which had been made, peremptorily refused to accede to the demands of the plaintiffs, and this action inequity was‘commenced for a rescission and for the cancellation of - the bond and mortgage and for the recovery of the money paid, the plaintiffs offering to restore the land to the defendant. Other facts appear in the opinion. '
    J. W. Shea, for the appellants.
    
      Stewart F. Hancock and J. Charles Meldram, for the respondent.
   Spring, J.:

Upon the-trial Mr. Heid testified on behalf of the- defendant that he was willing.to have the barn moved- onto the premises conveyed to the plaintiffs, and the defendant offered to move it at her expense. Thereupon the court dismissed the complaint, without costs, inserting in the judgment a provision requiring the defendant within a stipulated time to move the bam two and one-half feet to the1 north so that it would stand wholly on the premises actually conveyed.

We think, in view of the undisputed evidence in the record, that the disposition made of the case is not just to the plaintiffs.

There was no intentional misrepresentation as to the lot line made by the defendant. She did not intend to deceive. She did, however, make a misstatement to the plaintiffs as to a material fact by which they were misled and induced to purchase the land. It is not necessary to prove the fraud alleged. The action Was in equity and the, court will not permit the plaintiffs to' lose or the defendant to profit by her misstatement, although unintentionally made. (Silverman v. Minsky, 109 App. Div. 1; affd., 186 N. Y. 576; Crowe v. Lewin, 95 id. 423; 24 Am. & Eng. Ency. of Law [2d ed.], 618.)

The parties never agz’eed, the one to purchase or the other to sell, the lands covered by the conveyance. Their minds did not meet. There could be no reformation, for the defendant did not own that part of the land included in the conveyance and which did- not pass to the grantees. The action for rescission was, liowevez1, an available z’emedy. (Vail v. Reynolds, 118 N. Y. 297, 302; Davis v. Rosensweig Realty Co., 192 id. 128, 133 et seq.)

The learned trial court was of the opinion that the representations were not shown to be material. The plaintiffs did not receive the quantuzn of land which they bargained for. The width of a part of their lot was dizninished two and one-lxalf feet, and we think the evidence fairly established this paring off one side of the lot deprived them of a portion of the fern Led and the pear tree. They testified they would not have purchased for the price paid if they had expected the lines were not as shown thezn by the defendant, and that they relied upon her stateznents. They were not requiz-ed to show the depz-eciation in value oceun’ing by reason of the lessened quantity of land conveyed to them. The appellant, Mr. Tryon, did testify; based upon all the alleged misrepresezztations, that the value of the land actually conveyed to tlie plaintiffs was not more than $1,500. The pi’operty was obviously not worth as much as the lot they contracted for. They purchased for a home. They were deceived. As soon as they learned of that fact they informed the defendant and sought to annul the transaction in order that both parties might be restored to their original status. They acted promptly. The defendant should have, acceded to this demand. She admitted her misstatement, and yet insisted on reaping the full benefit of her contract precisely the same as if she had made no .misrepresentations. The plaintiffs are not seeking damages' by this action. They desire to have the contract rescinded, and they are entitled to the relief asked for.

We have, not based our decision on the representations as to the location of the south line of Fourth street as the evidence was not so explicit on that question and the court has found with the defendant upon it.

The judgment should be reversed and a new trial ordered.

All concurred.

-- Judgment reversed and new trial ordered, with costs to appellants. to abide event upon questions of law and fact.  