Opinion
March 22, 1907.
Gustavus A. Rogers, for the appellant.
Hugo Hirsh, for the respondent.
The evidence with respect to the understanding of the parties as to the meaning of the words "more or less" was, of course, incompetent in an action based on the contract as it stands. The evidence shows good record title in the defendant to the southerly 170 feet of the premises described in the contract and in the second deed tendered by her. The testimony of the surveyor called by the defendant, that the description in neither deed was correct, owing to the fact that he located the defendant's northerly boundary line 228.14 feet southerly from the southerly line of One Hundred and Sixty-eighth street, which is not the boundary line described in either deed tendered, manifestly is to be construed as indicating that in his judgment, owing to the surplus land in the block over the frontage given in the Findlay survey, the defendant owns 1.1 feet more than 171.25 feet, because the surveyors do not disagree about the southerly line, and, therefore, if defendant's northerly line commences 228.14 feet from the southerly line of One Hundred and Sixty-eighth street she should own 172.36 feet. As shown in the statement of facts, there is no conflict in the evidence with respect to the location of the southerly boundary line of lot 133. All concede that that line is fixed and established and corresponds with the fence constructed thereon. It thus appears, without controversy, that defendant had good record title to 170 feet, and that she was in possession of 171.25 feet or more. The evidence clearly shows a surplusage in frontage between the southerly line of lot 133 and the southerly line of One Hundred and Sixty-eighth street of several feet over the measurements shown on the Findlay map. Without the presence before the court of the owners of the northerly 35 feet of lot 133 and of lot 124, the ownership of this surplusage cannot be authoritatively adjudicated. It may be that the construction of the brick wall and building constitute a practical location of the line between the defendant and the abutting owner on the north. The evidence is not sufficiently definite to establish title to this surplusage by adverse possession; but it renders it highly probable that defendant would be entitled to at least 1.25 feet of the surplusage, if not more, and that she has been in possession thereof such a length of time that it is improbable that there will be any attempt to disturb her possession or that of her successor in interest. It is to be borne in mind that plaintiff's assignor purchased this parcel of land for a gross sum and that although there was uncertainty as to the frontage as is indicated by the fact that the description contained in the receipt first given gave the frontage as 173 feet, and that this was reduced to 171.25 feet when the contract came to be executed, and that even then the contract contains the express provision, referring to the measurements, "said dimensions being more or less." The defendant shows good record title approximately — and sufficiently in view of the form of the contract — to the amount of land specified in the contract; and it is reasonably certain that her possession of the remainder has ripened into title, or will ripen into title without molestation. There has been no fraud or misrepresentation. Plaintiff having withdrawn his demand for specific performance, stands before the court insisting that he was not obliged to accept the title, and that defendant is guilty of a breach of the contract. We are of opinion that defendant was not guilty of a breach of the contract, and that it was the duty of the plaintiff to take title. It follows that plaintiff was not entitled to recover the down payment or the costs and expenses of examining the title, and that the judgment should be affirmed, with costs.
PATTERSON, P.J., INGRAHAM, CLARKE and SCOTT, JJ., concurred.
Judgment affirmed, with costs. Order filed.