
    Hoppough, appellant, v. Struble.
    
      Action — equitable defense to action at lcnv~~. ejectment.
    
    Plaintiff, who owned a lot of land, conveyed a part thereof to M. H. Afterward, he sold and conveyed to defendant, by deed, the lot, excepting the part conveyed to M. H., stated to be about four acres. When negotiating the sale, plaintiff informed defendant that a certain fence was the line between him and M. EL, and defendant took possession of the land up to the fence. Subsequently, plaintiff acquired title to the land conveyed to M. H., and it was discovered that by a mistake of the surveyor the deed to M. EL embraced upward of. ten acres, and that the fence was not upon 'the line according to that deed.
    In an action of ejectment brought by the plaintiff to recover the land embraced in the deed to M. H., held, that defendant had a right to maintain an equitable action against plaintiff to have the deed to him (defendant) reformed, and could set up this equitable right as a defense to an action at law without claiming affirmative relief. Dobson v. Pearce, 12 N. Y. 156.
    Appeal from a judgment in favor of the defendant, entered upon the report of a referee. .
    
      0. H. Stevens, for appellant.
    
      Q. F. Dccnforth, for respondent.
   E. Darwih Smith, J.

The head-note contains all that is of importance in the opinion, which it is not believed important to give in full.

Judgment affirmed.  