
    Fitzpatrick v. Sweeney et al.
    
    
      (Supreme Court, General Term, First Department.
    
    March 14, 1890.)
    Vendor and Vendee—Defective Title—Description of Premises. •
    Premises sold at foreclosure sale were described in the deed to the mortgagor, the mortgage, the decree, and notices of sale, as Ho. 347 West Sixteenth street, and as commencing 366 feet east of Eighth avenue. In the deed to the mortgagor’s grantor the premises were described as commencing 336 feet east of the avenue. Held, that the title was not a marketable one, and that the purchaser was entitled to be relieved from his purchase.
    Appeal from special term, New York county.
    Action by Julia Fitzpatrick against Michael Sweeney and others to foreclose a mortgage. Bryan L. Kennelly, the purchaser at the foreclosure sale, moved to be relieved from his purchase. Plaintiff appeals from the order granting the motion.
    Argued before Yan Brtjnt, P. J., and Brady and Daniels, JJ.
    
      John Hardy, for appellant. Platt & Bowers, for respondent.
   Brady, J.

The piece of property sold under the foreclosure was described in a diagram as Ho. 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 were known as Ho. 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 Eighth avenue, and that the deed by Black was intended to convey Ho. 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 as 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, 15 N. E. Rep. 615; Brookman v. Kurzman, 94 N. Y. 272. These cases recognize the proposition already suggested, that, if the description is meager, 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 described. 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 itheir 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, 2 N. E. Rep. 905. Story (1 Eq. Jur. p. 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, bub probable, and particularly at a time when the spirit of the age seems to be litigious. The order should be affirmed, with $10 costs and disbursements. All concur.  