39 N.Y.S. 712 | N.Y. Sup. Ct. | 1896
At an auction, sale of lots belonging to the estate of Charles M. Connolly, deceased, had April 9, 1878, the plaintiff, through one Camp, an agent, purchased six vacant lots, shown upon the auctioneer’s map as Eos. 32, 33, 34, 51, 52 and 53, and the defendant Gantz purchased six lots shown on said map- asEos. 28, 29, 30, 55, 56 and 57, with the improvement exhibited thereon as the Century House. Deeds were thereafter executed in which the-same lot numbers were used, but the description clause referred to them as known by those numbers upon a certain map filed in.the register’s office as map Eo, 814, twenty days subsequent to the sale. ■ ■ This last-mentioned inap' gave the six-lots purchased by the plaintiff the numbers which appeared upon the auctioneer’s map as having been purchased by Gantz and. vice versa. The defendant Gantz' took possession of the six lots he pur-' chased according to the auctioneer’s map, and thereafter rented the property to the codefendant, Walter E. White, who as occupant was joined as a party. The discrepancy was not discovered till about 1887, and the plaintiff shortly afterward brought this action to recover the property thus possessed by Gantz, because her deed, according to the lot numbers, which were taken from' the map filed in the. register’s office, purported to convey his lots. That Gantz did as matter of fact purchase the Century House and the six lots upon which it'stands, and of which he took.possession, is evident from everything that appears in the case; and that the-plaintiff never asserted any title or made or- supposed she had any claim thereto until the .error in description was discovered is equally clear. The action, is an outgrowth of that' error, and is in effect founded upon it. The plaintiff'paid $155 éach for three lots, and $165 each for the other three; while Gantz, at the same sale, paid $390 a lot for his property. This indicates that the more valuable property was purchased by th.e latter. His deed conveys the land “ with the buildings thereon erected,” while the deed to the plaintiff conveys six lots, and is silent as to buildings. The fact is significant because the grantors are the same, and both deeds were delivered to carry out the auction sale. At the sale the Century House-and the six lots -on which it stands were sold as one piece, while the six lots purchased by the plaintiff were sold separately.
Complaint dismissed, with costs. :