
    Edward J. King, Respondent, v. Samuel T. Knapp et al., Appellants.
    (Argued December 11, 1874;
    decided January 19, 1875.)
    Plaintiff purchased of defendants at auction sale a lot in the city of New York, paying ten per cent of the purchase-price. Printed handbills were issued and circulated by defendants, prior to the sale, containing a diagram of the lot, representing it as a parallelogram in form, twenty-five by one hundred feet, and its size was so stated in the printed text. Plaintiff purchased, relying upon this handbill, without examining the lot. The terms of sale, described it as “ twenty-five feet, front and rear, more or less.” The lot was to be conveyed by warranty deed free of incumbrance. A building upon the adjoining lot encroached upon the lot. This had stood for more than twenty-five years. This was known to defendants at the time of sale, but no mention thereof was made in the handbill, or in the terms of sale or at the time of the sale. Plaintiff refused to complete the sale and brought this action to recover the percentage paid. Defendants set up the contract, alleged a readiness and tender of performance, and asked for a specific performance on the part of plaintiff. Held, that plaintiff’s bid having been obtained by the suppression of a material fact, defendants could not enforce the purchase; that plaintiff was entitled both to a title to, and the possession of, the whole lot; not simply a right of action for its recovery, which, conceding the title to be good, was all that defendants could convey as to the part encroached upon; and that the insertion of the words “more or less ” in the terms of sale did not, under the circumstances, affect the rights of the parties.
    Appeal from order of the General Term of the Supreme Court in the first judicial department, reversing a judgment in favor of defendants entered upon a decision of the court at Special Term and granting a new trial.
    This action was brought to recover back ten per cent paid by plaintiff upon a purchase of defendants, at auction sale, of premises in the city of New York, and to recover' the auctioneer’s, surveyor’s and counsel fees, etc., paid by plaintiff.
    The complaint alleged, in substance, that on the 11th day of February, 1869, the defendants exposed for sale at public auction a house and lot of land in the city of New York known as No. 45 Crosby street; that said lot was represented at the sale to be twenty-five feet in width by 100 feet in depth with straight side lines, making it equal width from front to rear; that relying on such representation, plaintiff bid off the property at $25,900, and paid ten per cent of that sum and the auctioneer’s fees; that the lot was to be conveyed by warranty deed with good title in fee simple free from all incumbrances, on the 13th day of March, 1869, at which time the balance of the purchase-price was to be paid or secured by mortgage; that plaintiff caused a survey of the lot to be made and found that the northerly wall of house No. 43 Crosby street encroached on the premises bid off by him, ten inches in front on said street, which encroachment increased until at the distance of thirty feet from the street it became sixteen inches, and for thirty feet further such encroachment was about two inches; that the owners of No. 43 claim to own and to possess by adverse title that part of lot forty-five so encroached upon ; that defendants well knew of the encroachment and knowingly withheld such fact from the plaintiff at the sale, and that plaintiff was ignorant thereof till informed subsequently to the sale by the surveyor; that the owners of No. 43 refuse to remove the encroaching building, and insist that they have acquired title by adverse possession. That such encroachment diminishes, the value of the lot and makes the southerly line or side thereof irregular, so as to greatly diminish the value of the lot for purposes of improvement.
    Defendants, by their answer, alleged that on and prior to the 11th day of February, 1869, they were the owners in fee simple of the lot in question, which lot was twenty-five feet in width front and rear by 100 feet in depth on each side; and that upon said lot was a house twenty-one feet and two inches wide in front, with an alley adjoining on the north side thereof three feet wide; that on the south side of said house, No. 45 Crosby street, there had been an inadvertent encroachment upon said lot substantially in the manner described in said plaintiff’s complaint, but said encroachment had been acknowledged by the owner of the adjoining premises, and that he had agreed to remove it whenever required; that the property was exposed for sale at the time and substantially in the manner alleged by the complaint; that the terms of the sale stated the width of the premises to be twenty-five feet more or less, and that plaintiff signed a memorandum of his purchase in which the premises are described to be “ twenty-five feet more or less front and rear, by 100 feet on each side; ” and they aver a readiness on their part to convey on the thirteenth of March, and to fulfill the contract of sale in all -respects, and failure to fulfill on the part of plaintiff, and that they offered to convey and were able to convey by good title “ all the premises purchased ” by plaintiff.
    Defendants, by way of counter-claim, prayed -judgment against plaintiff for the residue of the sum agreed to be paid by him, etc.
    It appeared by the evidence that prior to and at the time of the sale a handbill prepared by one of the defendants was circulated which contained a diagram, upon which the lot was represented to be in form a parallelogram twenty-five feet wide by 100 feet deep. The hand-bill states that the lot is “ 25 x 100 feet.” The building on the adjoining premises had encroached for twenty-five years at least prior to the sale. This was well known to the defendants.
    It appeared by the defendants’ evidence that, before the sale, the defendant Samuel T. Knapp, who acted for the other defendants called at the office of Mr. A. Thompson, their ■lawyer, to arrange the terms of sale. A printed blank was filled up, describing the premises as in thé hand-bill, “ twenty-• five feet front and rear by 100 feet deep on each side.” By said defendant’s directions, after the words “ twenty-five feet ” in the description, the words “more or less” were interlined. No change was made in the handbills, and no notice of the encroachment given on the sale. Plaintiff bid upon the lot relying upon the handbill and ignorant of the encroachment.
    The court found that at.the time specified, defendants were all ready and offered to fulfill the contract, but that plaintiff declined to accept the deed and to pay the residue of the purchase-price, and directed judgment dismissing the complaint and for the recovery by defendants of the said residue upon delivery of a warranty deed duly executed, conveying the premises by a description specifically given, which on the side encroached upon bounded them by the other line of the encroaching building, excluding the portion of the lot encroached upon. Further facts appear in the opinion.
    
      T. Darlington for the appellants.
    Plaintiff is not entitled to the relief sought. (Cathcart v. Robinson, 5 Pet., 276; Tripp v. Cook, 26 Wend., 160; 1 Story’s Eq. Jur., § 194; Haywood v. Cope, 25 Beav., 151, 152 ; Peters v. Goodrich, 3 Conn., 150, 153.) Plaintiff was not deceived or misled in any essential matter. (Grant v. Morse, 22 N. Y., 323 ; Lefler v. Field, 50 Barb., 407; Rice v. Isham, 1 Keyes, 46 ; Westcott v. Fargo, 63 Barb., 350; Bradley v. Aldrich, 40 N. Y., 504; Mann v. Fairchild, 2 Keyes, 112: Code of Proc., § 268 ; Sheldon v. Sheldon, 51 N. Y., 354; Hubbell v. Meigs, 50 id., 480 ; Dolman v. Nokes, 22 Beav., 402, 407; Williamson v. Brown, 15 N. Y., 354; Peters v. Goodrich, 3 Conn., 153.) There was no such mistake as entitled plaintiff to relief at the hands of the court. (Faure v. Martin, 7 N. Y., 215 ; Rawle on Cov., 218 ; Gillespie v. Moon, 2 J. Ch., 596; 1 Story’s Eq. Jur., §§ 121-194; 2 Kent’s Com., 491, note; Marvin v. Bennett, 26 Wend., 169; Morris Canal Co. v. Emmett, 9 Paige, 168; Mann v. Pearson, 2 J. R., 37; Butterfield v. Cooper, 6 Cow., 481; Stebbins v. Eddy, 4 Mason, 419; Grantland v. Wight, 2 Munf., 179; Thomas v. Perry, 1 Pet., 58; Buck v. McCaughtry, 5 Monroe, 220.) Defendants were entitled to a performance of the contract. (Hathaway v. Power, 6 Hill, 453; Root v. 
      Paff, 3 Barb., 353 ; Faure v. Martin, 7 N. Y., 210; Jackson v. Barringer, 15 J. R., 471; Mann v. Pearson, 2 id., 37 ; Brady v. Hinnion, 8 Bosw., 528; Marvin v. Bennett, 26 Wend., 169; Butterfield v. Cooper, 6 Cow., 484; Morris Canal Co. v. Emmett, 9 Paige, 168.)
    
      John E. Parsons for the respondent.
    In an executory contract where the boundary line is described by measurement, the words “ more or less ” do not deprive the vendee of his right to the full dimensions. (2 Wash. on R. P., 631; 2 Hilt., 536, citing Crawford v. Crawford, 1 Bai., 128; Jackson v. Barringer, 15 J. R., 471; Butterfield v. Cooper, 6 Cow., 481; Root v. Paff, 3 Barb., 353; Hathaway v. Power, 6 Hill, 453; Valentine v. Conner, 40 N. Y., 248; Overlander v. Spiess, 45 id., 175.)
   Rapallo, J.

The decision and judgment rendered at Special Term were clearly erroneous, in requiring the plaintiff to pay the whole purchase-money bid for the lot Ho. 45 Crosby street, on receiving a conveyance of only a portion of the lot. It is asserted, on the part of the defendants, that they had a good title to the whole lot Ho. 45 Crosby street, twenty-five feet in width by 100 feet in depth, and that although it was encroached upon by the buildjngs on the southerly side, to an extent varying from ten to sixteen inches, and making the southerly line jagged and irregular, and this encroachment had existed for more than twenty-five years, yet, that the owners of the encroaching buildings recognized the title of the defendants to the land covered by the encroachment, and had not acquired any title thereto by adverse .possession. If this were true, the plaintiff, if he completed his purchase, was entitled to a conveyance of all the title the defendants had, and to his remédy to obtain possession of the entire lot. Yet, the court, by its second conclusion of law and the judgment thereon, required him to pay the entire purchase-money and to accept a deed bounded by the walls of the encroaching buildings, thus leaving the defendants vested with the title to that part of the lot which was covered by the encroachment. This error was of itself sufficient to justify the order of the General Term reversing the judgment.

But even if the defendants had been required to convey the entire lot, they could not perform their part of the contract, for they had not and could not give possession of that part of the lot which was covered by the encroachment. They could only convey a right of action for its recovery, which they admitted could not be made effectual for a considerable time. The contract was to sell the lot by a good title in fee simple, and to convey it by warranty deed, free and clear of all incumbrances. The land covered by the encroachment is admitted by the defendants to be a part of the lot. Their contract so to sell and convey it would not have been performed by the conveyance of a mere right to bring ejectment for the recovery of the land.

The defendants rely upon the fact that in the memorandum of purchase signed by the plaintiff, the lot is described as the house and lot No. 45 Crosby street, on the east side of Crosby street, “ twenty-five feet more or less, front and rear, by 100 feet deep on each side.” We think, however, that the insertion of the words “ more or less ” does not, under the circumstances of the present case, help the defendants. It appears by uncontroverted evidence, and the court was requested to find as fact, that the arrangements for the sale Avere made on behalf of the defendants by the defendant Samuel T. Knapp. That the encroachment in question was known to him for many years before the sale, yet that printed handbills were prepared and distributed among the persons attending the sale, containing a diagram of the lot, representing it to be regular in shape, with straight lines on each side, and stating, in the printed text, that the lot Avas twenty-five by one hundred feet in size. That no mention of the encroachment was made at the sale, and the plaintiff bid upon the lot, retying upon the accuracy of the handbill. That the terms of sale Avere prepared by the counsel for the defendants, describing the lot as twenty-five feet front and rear, but that, by direction of the defendant Samuel T. Knapp, and with reference to said encroachment, the words “ more or less ” were interlined after the words twenty-five feet. But no reference was made, in said terms of sale, to the encroachment, and no notice was given to the plaintiff ■ that it existed or- that the southerly line was irregular.

We think the judge, at Special Term, should have found these facts as requested, and should have held that a bid obtained by the suppression of a fact so material to the value of the lot could not be enforced.

The order of the General Term should be affirmed, with costs, and judgment absolute against the defendant.

All concur.

Order affirmed.  