
    Simeon G. Garrett, Resp’t, v. Clarissa M. Horton, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed November 30, 1891.)
    
    Deed—Deficiency in quantity.
    Defendant and her husband, since deceased, who were tenants by entirety of certain land, conveyed the same to plaintiff by a deed which described it as bounded by lands of others and as containing forty acres. They also represented it as containing that quantity of land. The deed and consideration were deposited with one C., who applied a large part of the money to obtain a release from a mortgage which covei ed this and other lands of the grantors. The piece contained only eighteen acres. Held, that as defendant was benefited by the transaction plaintiff was entitled to recover damages for the deficiency in the quantity of land called for by his deed.
    Appeal from judgment in favor of plaintiff, entered on the report of a referee.
    
      C. & C. H. Williams, for app’lt; E. Crummey, for resp’t
   Learned, P. J.

This is an appeal from a judgment against, defendant on the report of a referee.

The action is to recover damages for injury sustained by the-plaintiff on his purchase of land from the defendant’s husband, now deceased.

The land had been conveyed to defendant and her husband, and they were tenants by the entirety. Bertles v. Nunan, 92 N. Y., 152. It was called the Moses Yandervoort farm. He made a written contract in January, 1887,. to sell it to plaintiff for $1400. In the contract it is called the Moses Yandervoort farm ; the-names of adjoining owners are given and it is described as-40 acres, more or less. Ho other description is given. The price was $1,400 and a penal sum of $100 was named as fixed and settled damages to be paid by the failing party.

On the first of April defendant and her husband executed a deed to plaintiff of the farm. The deed was left in the hands of Mr. Orummey and the money was also left with him. The farm was incumbered. Soon afterwards Mr. Orummey paid $1,300 to the mortgagee and obtained a release. He also gave $50 to defendant’s husband to buy out the tenant and the other $50 was also paid to Horton. Mr. Orummey states that he was not then attorney for either party. He seems to have acted for both at that time. It was discovered that the old deed of the land called for only thirty acres. A subsequent survey has shown that there-were only eighteen and one-half. The plaintiff took possession of the land about April 12th and has been in possession ever since.. The deed and the release have ever since been in Mr. Crummey’spossession.

The defendant’s husband died August 20,1888, before the commencement of this action.

The plaintiff claims that defendant and her husband falsely represented that there were forty acres of land and that he relied on such representations.

The report of the referee found that plaintiff should recover of defendant $500 damages, with costs, and that thereupon plaintiff was entitled to the deed. The judgment, however, is simply for the damages and costs.

It appears by the testimony that there had been, at one time, and for some twenty years, a lot of ten acres connected with the Vandervoort farm, which lot is now part of the Horton place. In this way the Vandervoort place had been described as containing thirty acres and -had been for a long time so assessed.

There is evidence in the case from which the referee could find that both defendant and her husband stated to plaintiff before the sale that there were forty acres in the Vandervoort farm. There is evidence also that she knew of the negotiations between her husband and plaintiff and was present at them. They went together and showed plaintiff the place. And the deed signed by defendant and her husband describes the land as about forty acres, more or less.

It should further be noticed that defendant and her husband were owners of some land, apparently about 100 acres, other than this Vandervoort farm, and that the mortgage from which the Vandervoort farm was released, as above stated, by the payment of plaintiff’s $1,300, covered also these other 100 acres. Thus that mortgage on the 100 acres was reduced so much by this payment ; and the defendant, as survivor, has received the benefit of such reduction.

The proof in the case justifies a finding that the statement by defendant’s husband that the property contained forty acres was false and fraudulent Even with the ten acre lot which had once been connected with this farm, and which at the time belonged to the Horton place, the property would have, been a little less than thirty acres. The defendant and her husband lived adjoining. The plaintiff in another county. He was not familiar with the land. And though he went upon it, he might easily be deceived as to its actual size.

The plaintiff at the time of the contract had an estate in the land and it could not be validly sold in fee without her conveyance. She bad her right of survivorship, of which she could not be deprived against her will. And this same right extended to the other 100 acres. She was, therefore, interested in getting as much as possible from plaintiff. And she actually benefited by the transaction at the time it was made; and of course she was still more benefited after her husband’s death. She, therefore, benefited by the fraud; even if we pass over the false statements which she is alleged to have made. And that her husband acted for her in the transaction appears from the fact that she joined in executing the deed to plaintiff. By doing this she accepted his previous negotiations as made for herself as well as for him.

The defendant’s counsel urge that the release of the land is still held by Mr. Crummey, now plaintiff’s attorney, and that, therefore, the land is still burdened of record by the mortgage. But, as a fact, the Vandervoort farm is free from the encumbrance, and the encumbrance on the 100 acres is reduced by $1,300. It is immaterial to the rights of these parties whether or not these facts appear in the record in the clerk’s office.

We see no error in the admission of evidence or in the rule of damages applied by the referee.

Judgment affirmed, with costs.

Landon and Matham, JJ., concur.  