
    Helena Dennerlein v. John Dennerlein et al.
    
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 13, 1887.)
    
    T. Real property—Sale of—Effect of the words “more or less"' nr DESCRIPTION.
    This was an action for the admeasurement of the plaintiff's dower. On a reference in the action, it was found that it was impracticable to lay off a distinct parcel of the premises. Thereupon judgment was made directing a sale by the referee. The referee did not publish a notice for the presentment of liens, etc., on the premises. The referee sold the premises to Richard Webber. After the sale Richard Webber refused to complete the purchase, on the ground that when he bought the land he supposed that there were thirty-one acres, when in fact there are only 24 946-1000 acres. He applied to be relieved of his purchase, and the application was denied. Held, that there was no representation of quantity beyond the description as stated in an old deed, which ended with the words. “ Containing thirty-one acres, be the same more or less,” and at the time of sale the property was sold by a description which was real, giving the monuments, metes and bounds, that the sale was in bulk, and there was no warranty as to quantity. Distinguishing Paine v. Upton, 87 N. Y., 327; following The Morris Carnal v, Bmmtt, 9 Paige 167,
    
      8. Doweb—Action fob admeasurement of—Sale of the premises— Effect of failure to advertise fob liens, etc.
    
      It seems that a party raising the objection that there was no notice for the proof of liens against the premises to he sold, must show that such liens actually exist.
    Appeal by Richard Webber, purchaser, from order of Dykman, J , made at Westchester special term, denying motion to be discharged from purchase.
    The plaintiff, who is the widow of George Dennerlein, who died on January 10, 1885, brought this action for dower in a farm of which her husband died seized, situate at Westchester. On a reference in the suit, it was found that it was impracticable to lay off a distinct parcel of premises in satisfaction of plaintiff’s dower. Thereupon, and on February 5, 1887, judgment was made, directing a sale by Charles G Banks, referee. Said referee sold said premises at auction on March 28, 1887, and Richard Webber became purchaser for $15,000. He paid ten per cent. ($1,500), which the referee still retains. Title was to be taken on April 23, 1887 It was adjourned from time to time till May 7, 1887, when the purchaser refused to complete his purchase, on the same grounds upon which he subsequently made his motion to be released. That at the time of the sale the premises were described as being thirty-one acres of land, and the purchaser believed such to be the case, when, in fact, the same only contained 24.946 1000 The judgment herein was irregular, because no notice was published by the referee appointed to take proof of hens on premises, as required by the Code, and certain persons, to wit: the cred- • itors of George Dennerlein, deceased, by reason of such non-publication, were not bound by this judgment or sale, and held outstanding hens upon such premises.
    
      Early & Prendergast, for Richard Webb; L. C. & W. P. Platt, for pl’ff; H. C. Henderson, for def’t.
   Barnard, P. J.

This case does not fall within the case of Paine v. Upton (87 N. Y., 327). In that case there was a representation preliminary to the negotiation that the farm contained 222 acres and upwards. The description of the lands when the deed came to be given was accompanied by the addition of the words “ more or less ” to the number of 222 acres. The court held that under the findings of fact, equity could give relief against the mutual mistake of the parties, and that the words more or less, did not take away the right to such relief. In this case there was no representation of quantity beyond the description as stated in the old deed, and which ended with the words containing thirty-one acres, be the same, more or less.”

There were hand bills posted by the referee announcing the sale of the farm of the deceased, George Dennerlein, “ containing thirty-one acres.” At the sale the full description was read, giving monuments, metes and bounds, and the property was sold by this description and a lump sum paid therefor There was no misrepresentation or fraud, and the case of The Morris Canal Co. v. Emmett (9 Paige, 167), lays down the rule which governs the case.

The case of Faure v. Martin (3 Seld., 210), holds that a sale of lands, stating the number of acres, “be the same, more or less,” at a fixed price, is a sale in bulk, and that the quantity is not warranted to be as stated.

The point that there was no publication of a notice for liens, has no weight. There is no proof of any general or specific lien, and the court has, by the decree, directed the payment of the entire proceeds of this sale to the executors, and there is no claim that there is not sufficient to pay the debts of the deceased.

The order should, therefore, be affirmed, with costs.

Pratt, J.,  